The American Spectator

On October 6, I argued here that Bush nominee Harriet Miers would likely have to recuse herself from considering key cases, notably those involving national security issues. Since then the issue has gained saliency, and a more detailed examination is in order. Democratic Senators — including Patrick Leahy, Judiciary Committee ranking Democrat — have raised the issue. The Senate Judiciary Committee Questionnaire to Miers poses Question 22, concerning Potential Conflicts of Interest:

Explain how you will resolve any potential conflict of interest, including the procedure you will follow in determining these areas of concern. Identify the categories of litigation and financial arrangements that are likely to present potential conflicts of interest during your initial service in the position to which you have been nominated. Specifically, explain how you will resolve any conflicts that may arise by virtue of your service in the Bush Administration, as George W. Bush’s personal lawyer, or as the lawyer for George W. Bush’s Gubernatorial and Presidential campaigns. In addition, please explain how you will resolve any conflicts that may arise from your time engaged in the private practice of law.

br> Miers answered Question 22 thus:

I would resolve any potential conflict of interest by abiding by both the spirit and the letter of the law. I would comply with the Ethics Reform Act of 1989, 28 U.S.C. Section 455, the Code of Conduct for United States Judges, and other applicable requirements. These proscriptions would provide needed direction concerning the recusals necessary as a result of my government service or previous representations as a private lawyer. [Emphasis added.]

The Judicial Code of Conduct closely parallels the language of U.S. Code sec. 455(b)(3) U.S. Code sec. 455(b)(3), asking: “Did the judge participate in government employment as counsel, advisor, or material witness concerning a matter?”

In a letter to Miers, pointing to her citation of “ethics laws” as governing potential conflicts of interest, Leahy and Judiciary Committee Chairman Arlen Specter asked Miers for details as to possible recusal from cases on the High Court:

We are aware of statutes and codes that generally govern these matters, but recusal decisions of Supreme Court Justices are more complicated because they are not subject to further review. Please be more specific [as to possible recusal in] cases arising out of matter in which you worked at the White House, or as a lawyer for President Bush in his personal capacity, or in service to his various campaigns.

p>A New York Times article reported last week that Democratic recusal concerns centered on war cases: br> /p>

Democratic aides, speaking on condition of anonymity because of the sensitivity of the inquiry, said they had in mind questions arising from antiterrorism legislation or the torture of prisoners of war, among others. [Emphasis added.]