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.
