President Bush’s choice of White House counsel Harriet Miers has prompted much criticism, but his friends miss perhaps the biggest problem with the nomination: the likelihood that if confirmed the new Justice, because of her White House work, will recuse herself in major cases where her vote could prove decisive — notably, war cases. The White House can claim executive privilege and refuse the Senate Miers’s memos written as White House counsel. While executive privilege can be breached in extraordinary circumstances such as a criminal investigation (e.g., Watergate), a routine confirmation hearing fails to surmount that hurdle. Senators can, of course, vote down a nominee who declines, however lawfully, to supply requested information.
But if Senators are prevented from seeing memos they should ask on what actual cases Miers has advised the President. Under federal law, if Ms. Miers is confirmed, and has professionally advised on a matter that subsequently comes before her on the bench, she must recuse herself. Federal law is quite specific here. Title 28 U.S. Code sec. 455 covers recusal of judges, justices, and magistrate judges. Sec, 455 (b)(3) recites one ground for mandatory recusal: “Where [a judge, justice, magistrate judge] has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” Sec. 455 (e) adds: “No justice, judge or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b).”
One case already is wending its way to the Supreme Court: a July 15 unanimous decision by the U.S. Court of Appeals, D.C. Circuit, upholding the right of the government to detain and try unlawful combatants without giving detainees rights under the Geneva Conventions. One member of that three-judge panel was Chief Justice Roberts, who must thus recuse himself on appeal to the Supremes.
If Miers also recuses this would deprive the Administration of two votes in a vital case where every vote is needed to prevail. This case is of utmost import, involving how suspects may be interrogated and whether they may be detained without criminal process. Only two votes — Scalia and Thomas — seem likely to affirm; four are very unlikely (Stevens, Souter, Ginsburg, Breyer); one (Kennedy) is iffy. With Roberts sidelined the O’Connor successor’s vote in this case is essential to reach a 4-4 affirmation on appeal.
The recusal statute does not expressly bar participation in cases where a counsel has offered general advice on a topic, without going to the merits of a specific case. But it seems intuitively unlikely that Miers’s advice was so limited. At minimum she should be asked to provide evidence that in fact she has not advised on specific terror cases. If she has, her vote on a divided Court is too important to be forfeited. On such grounds alone she should be rejected.
In simpler times this would not have been a problem. In 1870 Chief Justice Salmon P. Chase wrote the majority opinion in Hepburn v. Griswold, declaring unconstitutional the Union’s issuance of paper money (“greenbacks”) in 1862 (to help finance the Union’s war effort). As it happened, the Treasury Secretary who issued the greenbacks in 1862 had been none other than Salmon P. Chase. Declaring one’s own prior action unconstitutional speaks volumes for open-mindedness (or intellectual nimbleness), but today Chase would have to recuse himself. (The decision, in the event, was overturned one year later when President Grant, enraged by the ruling, appointed two Republican Justices.)
Unless Harriet Miers can show that she will not have to recuse herself in vital war-related cases, or unless we are prepared to resurrect 19th century rules of recusal, President Bush’s choice should be rejected, for want of eligibility to participate in cases where her vote may well decide the issue and thus have a major impact on U.S. national security.
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H/T to National Review Online