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.
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.
A New York Times article reported last week that Democratic recusal concerns centered on war cases:
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.]
In 2003 Justice Scalia recused himself from considering an appeal of a Ninth Circuit ruling declaring the Pledge of Allegiance unconstitutional. Scalia had made specific remarks criticizing Ninth Circuit’s ruling and predicting reversal by the Supremes. His remarks, given at a private event, led the appellant to seek recusal, and Scalia assented (Elk Grove Unified School District v. Newdow). Scalia’s recusal was pursuant to Title 28 U.S. Code Section 455(a): “Any justice, judge, or magistrate judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Parties may waive 455(a) disqualification. This is not the case as to 455(b) recusals, the section that, per (b)(3), covers Miers’s advice on cases as White House counsel; all 455(b) recusals are mandatory.
Scalia was involved in another matter in 2003: the Sierra Club asked him to recuse from a case, Cheney v. U.S., involving an energy policy task force chaired by the Vice President, after Scalia’s having taken a small group hunting trip with Vice President Cheney. Sierra’s recusal request was based on presumed personal bias arising out of friendship, not advice given in a case coming before the Court. Scalia declined to do so, partly because the Sierra Club petition identified no legal cases, merely a bushel of newspaper editorials calling for recusal, which Sierra took as speaking for the broader public. Scalia rejected that claim.
In 1993 seven Justices signed a Statement of Recusal Policy (SRP, available from the Court by snail mail); David Souter and Harry Blackmun declined to sign — the latter was succeeded in 1994 by (non-signatory) Stephen Breyer. The SRP focused on relatives of the Justices practicing in a law firm having a case before the Court. The Justices stated:
In this Court, where the absence of one Justice cannot be made up by the presence of another, needless recusal…produces the possibility of an even division on the merits of the case, and has a distorting effect upon the [appeals] process by requiring the petitioner to obtain….four votes out of eight instead of four out of nine….Absent some special factor, there, we will not recuse ourselves by reason of a relative’s participation as a lawyer in the earlier stages of the case. One such special factor…would be the relative’s functioning as the lead counsel below….
Is what Harriet Miers has done for the President as White House Counsel a “special factor” per the SRP? Herewith her answer to the Senate Judiciary Committee’s Questionnaire, Question 15(b) (link above):
The Counsel to the President is the chief legal advisor to the President and the White House. I, and my office, provide advice on a broad range of matters implicating constitutional, statutory and regulatory law, including the constitutionality of proposed regulations and statutes, constitutional prerogatives of the executive branch, legal policy, international law and treaty obligations, ethics, national security, executive appointments, and judicial nominations.
Miers would face recusal requests not about the work of a relative, but about her own work. As “chief legal advisor” she is the equivalent of at least a co-lead counsel in a court case. Surely she, to an asymptotic certitude, has advised her government client on major cases now wending their way through the federal judicial system. Above all, note her stated intent to comply with “both the spirit and letter” of the law. Then read the plain statutory language of 28 U.S.C. sec. 455(b):
A [judge] shall disqualify [herself] where she has served in governmental employment and in such capacity participated as counsel, adviser…concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.
Can [she] still refuse to recuse? Yes. The nice thing about being a Supreme is that you get to do pretty much anything you want. Recusals up there are rare. Miers could simply state that in her view 455(b)(3) does not cover anything she worked on at the White House. But many will see otherwise, and there will be a high price paid: the reputation of the Court — and her own, as well.
Scalia’s 2003 recusal — for simply having made an offhand remark at a private event — seems strong precedent for Miers, as to cases on which she rendered formal legal advice to the President. Scalia’s recusal was under the purely discretionary section of the statute, whereas Miers faces calls for recusal per the mandatory section. It is hard to see how she credibly evades this.
My Oct. 6 article identified a key war case (Hamdan v. Bush, decided 7/15/05) involving applicability of the Geneva Conventions to terror detainees. The Bush Administration will likely lose the case if Miers recuses herself, as Chief Justice John Roberts, who helped decide the appellate case, must recuse himself. This would cost the government the case, as four Justices are virtually certain to vote to apply Geneva norms to detainee questioning and treatment, making at least four out of seven votes to reverse. Such would then rule out such uninteresting inquiries as: “Do you know of any WMD terror plots?” “Can you tell us about al-Qaeda’s surviving command structure?” Geneva allows but four questions: name, rank, serial number and yes, birth date. That’s it. Are we really ready to deprive ourselves of potentially vital intelligence of a future WMD strike?
The present Court is simply not solid enough on war cases to sacrifice two votes on a major case, and one vote on many such cases. Unless Harriet Miers can provide assurance that she can sit and hear key war-related cases, on that ground alone she must be rejected by the Senate.