Harriet Miers: The Recusal Question

Charles Krauthammer raises a key question in his column today that is likely to get a lot of attention during the Miers confirmation hearings. Wouldn't she be morally obligated (and possibly legally obligated?) to recuse herself from matters that she worked on as White House counsel?

Writes Krauthammer: "For years -- crucial years in the war on terrorism -- she will have to recuse herself from judging the constitutionality of these decisions because she will have been a party to having made them in the first place. The Supreme Court will be left with an absent chair on precisely the laws-of-war issues to which she is supposed to bring so much."

Back in February 2004, Slate's Dahlia Lithwick wrote about the vague rules governing recusal of judges. She was writing in light of the controversy over whether Justice Scalia should have recused himself in a case involving duck-hunting buddy Dick Cheney. (Scalia chose to participate in the adjudication anyway.) Thing is, it's slightly less ambiguous for Miers who, as Krauthammer points out, was part of the decision-making process as White House counsel on several issues that could come before the court.

In Title 28, Section 455 of the U.S. Code reads in part that a judge "shall also disqualify himself in the following circumstances," with circumstance #3 being "Where he 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."

Seems pretty clear cut, doesn't it?

Yet in a LiveOnline chat, the University of South Carolina's Thomas Hansford was asked twice whether Miers would have to recuse herself; Hansford wouldn't give a straight answer.

John C. Wohlstetter, writing in the American Spectator, worries that if Miers had to sit out the enemy combatants case on appeal, that would leave two conservative judges out of the picture. (Roberts was one of the judges who decided the case back in July when he was still on the D.C. Circuit, so he definitely couldn't take part.) Wohlstetter argues that at least Miers "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."

I'm eager to read your comments on this -- especially if you've got links to other opinions or crucial facts to add to the recusal debate. Got a tip for a good Miers-related opinion for a future post? Drop me a line at debate@washpost.com.

By Emily Messner |  October 7, 2005; 9:00 AM ET  | Category:  Beltway Perspectives
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Upon reading the ABA's Model Code of Judicial Conduct...


Canon 2 states...


Has this subsection...

A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin.

Ah, does that include not only the Roman Catholic Church, but the more radical churches that do discriminate against sex (regarding woman as imperfect solely on their gender) and religion (claiming there is only one God, a that's a Christian one)?

As stated in the Catholic Encyclopedia:


The female sex is in some respects inferior to the male sex, both as regards body and soul.

Expanding on that theme...

It should be emphasized here that man owes his authoritative pre-eminence in society not to personal achievements but to the appointment of the Creator according to the world of the Apostle: "The man . . . is the image and glory of god; but the woman is the glory of the man" (I Cor., xi, 7). The Apostle in this reference to the creation of the first human pair presupposes the image of God in the woman. As this likeness manifests itself exteriorly in man's supremacy over creation (Gen., I, 26), and as man as the born leader of the family first exercised this supremacy, he is called directly God's image in this capacity. Woman takes part in this supremacy only indirectly under the guidance of the man and as his helpmeet. It is impossible to limit the Pauline statement to the single family; and the Apostle himself inferred from this the social position of woman in the Church community. Thus her natural position is assigned to woman in every form of society that springs necessarily from the family. This position is described by St. Thomas Aquinas with classic clearness (Summa theol., I:92:1, ad 2um). This doctrine, which has always been maintained by the Catholic Church, was repeatedly emphasized by Leo XIII. The encyclical "Arcanum", 10 February, 1880, declares: "The husband is ruler of the family and the head of the wife; the woman as flesh of his flesh and bone of his bone is to be subordinate and obedient to the husband, not, however, as a hand-maid but as a companion of such a kind that the obedience given is as honourable as dignified. As, however, the husband ruling represents the image of Christ and the wife obedient the image of the Church, Divine love should at all times set the standard of duty".

[The above is clear discrimination based on gender alone. That woman are second class to men, and are to be subservient by them].

If that this ethic canon is true, why do we have SCOTUS judges (let alone any judge) on the bench who's association to an organization that openly discriminates not only with gender, with other religions then?

Are these ethics rules to be enforced or not? Or are they like so many laws: they're all bark and no bite?

Why even have ethic rules if they aren't to be enforced based on such things as "religious freedom"? Clearly the above canon is in conflict with the very religious beliefs of those on the bench, and in doing so makes a mockery of the very ethic canon!!

Digging up more stuff for debate :-D

Posted by: SandyK | October 7, 2005 10:37 AM

Nice post. This is just further proof that Bush and his administration think really really hard before acting.

Posted by: benny | October 7, 2005 11:00 AM

Now about the political side...

Canon 5...



So what happens when someone pulls a Scalia, and decides to go duck hunting with the Vice President (a clear partisan leader)? Do folks just look the other way?

And if Scalia holds a conference and goes off on certain issues that will be addressed on the SCOTUS bench, why he can violate...

(i) with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial* performance of the adjudicative duties of the office;

without censor?

For example...


When the University of Chicago Divinity School, in connection with the Pew Forum on Religion and Public Life, planned a conference on religion and the death penalty someone invited Supreme Court Justice Antonin Scalia. Everyone was more than a bit surprised when he came. By a long-followed tradition members of the Supreme Court do not speak up on topics that might come before their court.

Justice Scalia stated unequivocally that he disagreed with the position of the pope and the Catholic church on the death penalty. He also startled the conference by asserting that he and any other Catholic judge who concurred with the pope on capital punishment would be obliged to resign from the bench. He said: "The choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty. He has, after all, taken an oath to apply those laws, and has been given no power to supplant them with rules of his own."

The above is a clear violation, as not only does Scalia openly talk about his views on the death penalty (which cases will be heard at the SCOTUS level), he even tells The Church it's view that the death penalty is wrong, is wrong in itself (thus telling the world his own personal views on how he'll vote on such capital cases -- with extreme prejudice). It's one view to uphold the Law of this country, it's another to tell the country HOW they'll vote!

Which fellow catholics also picked up...

Scalia on a panel of four at Chicago claimed that in his judicial capacity he was neither for nor against the death penalty. But many observers would say that in his opinions on the death penalty he has resisted any liberalization. His opinions state in essence that the issue should be returned to the states. He also argued vigorously that individuals under the age 18 at the time of a crime can be executed by the state. He is also not inclined to exempt the retarded from the ultimate penalty. Nor does he think that the court should look to international practice when it interprets "cruel and unusual punishment." World law almost everywhere gives a broader meaning to the idea that the government may not engage in cruel, abusive or degrading treatment or punishment.

This from a SITTING SCOTUS judge.

Meanwhile the Law Establishment let's their own ethic rules be disregarded. No doubt being so crafty as to find loopholes to excuse Scalia's behavior -- which makes ethic rules what again????

So who's judging the judges and making sure they remain ethical????

I'm getting back to Mier but laying some groundwork on ethics and OBJECTIVITY. :-D

Posted by: SandyK | October 7, 2005 11:09 AM

Benny wrote:
Nice post. This is just further proof that Bush and his administration think really really hard before acting.

Wonder IF they think, considering that was just a 5 minute reading of the ABA ethic rules, and not even knowing about the Scalia incident (that month I was modding a game so not up to date on the Scalia/Cheney romp).

If someone who never went to college, let alone finished high school can slice through this junk in minutes, it tells me that this country really has fallen, if our scholars and those who should know, pooh-pooh clear ethic violations or powerless to stop abuses.

If a sitting judge can't/won't be redressed for their conduct, what does that tell us about the accountability of our own behavior?? If the judges can't be punished for their violations, why should the citizens, huh?

In this country no one's above the Law, be it the president or a SCOTUS judge who clearly is trying to test what he can get away with.


Posted by: SandyK | October 7, 2005 11:41 AM

Let's also address this comment on the basis of recusal and ethics...


Justice Clarence Thomas once said it would violate his religious beliefs to lift his pen in favor of affirmative action.
When does a judge put his religious beliefs about the Law he is entrusted to rule and enforce? Law that may be secular and free from the taint of religious frevor?

When does the likes of Scalia and Thomas put their brand of Roman Catholic Church's views above the Law of this land? The statement from Thomas makes it clear that he should recluse himself from ANY case regarding discrimination, for he tells the world he can't be impartial.

So what good is a judge that sits on the highest bench in this great country, who can't perform his duties the citizens call him to do?

SCOTUS is a legal body, it's not a political or religious institution. It's job is to rule on Law, law that will be in conflict with their individual beliefs at times, but as judges they have to leave Sunday school and sermons at the door and judge on the basis of merit/need.

Because Scalia and Thomas make it very clear their religious views are in conflict with the Law of this land (especially secular Law), they should recluse themselves of any and all topics regarding religion, discrimination and issues regarding Equality. They can't be impartial, as they regard their idea of religion as higher than the office this country has entrusted them to uphold.

Which in a way disqualifies them in holding judgeship in the Supreme Court, since they won't be able to ethically partake in half of the cases that reach the Supreme Court.


Posted by: SandyK | October 7, 2005 12:00 PM

I think the solution to any recusal questions is just to ask Miers about it in confirmation and committee hearings. Find out how deep her involvement goes, find out her willingness to recuse, and go from there.

SandyK's comments are irrelevant to the Miers issue. Every judge has strong opinions about things, but the legal system couldn't function if we didn't believe them at least some of the time when they say that they can set their feelings aside. Ruth Bader Ginsburg used to be high up in the ACLU, yet we don't expect her to recuse every time the ACLU files an amicus brief. Breyer was a professor in a former life, with established views on certain legal issues, but we don't expect him to recuse every time he confronts a problem he's seen before.

An argument that all Catholics are unfit for the Supreme Court has no place in a discussion of whether Miers' involvement in Bush's policies should disqualify her in the cases challenging those policies. Tell me about what Miers' responsibilities were and what she's said about recusal, and check your anti-religious prejudice at the door.

Posted by: WB | October 7, 2005 12:16 PM

Given the circumstances of the trip, Scalia wrote, the only possible reason for recusal would be his friendship with Cheney.

"A rule that required members of this court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling," Scalia wrote.

Many Supreme Court justices get their jobs "precisely because they were friends of the incumbent president or other senior officials," he wrote.

Supreme Court justices, unlike judges on other courts, decide for themselves if they have conflicts, and their decisions are final.

Posted by: | October 7, 2005 12:26 PM

Here's something the general public may not know about recusals


Supreme Court justices, unlike judges on other courts, decide for themselves if they have conflicts, and their decisions are final.

So what happens when the judge is corrupt? If they can judge when they can excuse themselves, and their decisions are "final"?

Do citizens of this country have such luxury to brush off Law and ethics too?

No. So who made SCOTUS judges kings? Not the Founders or the Framers, nor the other branches of government.


Posted by: SandyK | October 7, 2005 12:29 PM

Please, use your spell checker!
"curcumstance #3"?
Such a simple error makes your observations seem to come from an uneducated source.
On the topic, arguing that one should reject a judicial nominee because that nominee is certain to come across cases in which they must recuse themselves seems to be circular reasoning. Perhaps we can do that all the time, and then we can eliminate the rules governing recusals. Can you see where I am going with this?

Posted by: Bruce Janis | October 7, 2005 12:47 PM

Bruce: The typo is fixed, and I appreciate your meticulousness. Sometimes these things happen when typing rapidly early in the morning. Fellow Debaters, be forewarned: Pre-coffee typos are particularly likely to occur. But "uneducated" -- hang on just a moment while I pull that dagger out of my side -- ouch! Cut a blogger some slack, eh? Especially considering "circumstance" was spelled correctly elsewhere in the post. (And yes, that was a fragment. I like fragments.)

Posted by: Emily Messner | October 7, 2005 12:49 PM


If the judges aren't impartial how can they be HONEST and OBJECTIVE judges?

So by your standards it's fine if crooked judges remain on the bench, if the other 50% of the time they're doing their job? So just ignore the messiness of ethics all together, since afterall everyone else is getting away with it?

So why do we even bother to have Laws, if they're so excused anyway?

When partisans view a court as an arm for their agendas, and when they excuse improper conduct so their side/views can get the upper hand, they do a disservice to this country -- for it's no longer about the Rule of Law, it's about stuffing the judicary with cronies to abeit by one side's wishes with little regard to their duties to be impartial and SAFE stewards of the Law.

Miers was legal counsel to the President. As long as Bush is in office any and all matters that addresses the Executive branch on legal matters she would have to excuse herself from hearing. Which leaves a court with one less judge in a time when clear and quick decisions maybe needed. If she doesn't, she could/would be regarded as a plant who's role is to directly affect the Law for the Bush Administration's benefit. Which undermines the credibility of SCOTUS, not only to this country's citizens, the rest of the world!

We have seperation of powers to check each other, not blur the lines to win a political game.

BTW, based on the ABA's own ethic standards, it did state that a justice should not be party to ANY organization (which the Roman Catholic Church and other more radical religions are) that will discriminate based on race, sex and religion. The Roman Catholic Church is well known to discriminate against women, and other religions (want to even dig up history for evidence, WB? Plenty to share. :-D).

A Deist who dislikes oppressive organized religions with a passion for the misery it brings to those they abuse -- be it women, minorities, or those who believe differently than them.

Posted by: SandyK | October 7, 2005 12:56 PM

Bruce Janis wrote:

"On the topic, arguing that one should reject a judicial nominee because that nominee is certain to come across cases in which they must recuse themselves seems to be circular reasoning. Perhaps we can do that all the time, and then we can eliminate the rules governing recusals. Can you see where I am going with this?"

Not really, since it's not logical to begin with. If folks make it impossible to nominate/elect/confirm/maintain judges based on recusal rules, there's no need to eliminate such rules, since they're eliminated from excusing themselves in the first place ;)


Posted by: SandyK | October 7, 2005 01:06 PM

"The senator, Sam Brownback, Republican of Kansas, told reporters that in an hourlong meeting with him, Ms. Miers had steered clear of discussing Roe v. Wade, the 1973 Supreme Court decision that found a constitutional right to abortion, and had done little to assure him that she would be open to revisiting or overturning that case."

I know this does not have anything to do with recusals, but weren't the republicans praising Roberts for not answering questions about issues that might come before the court? Now Brownback is worried because the nominee will not ASSURE HIM as to how she will rule on specific issues. How many ways can you say hypocrisy?

Posted by: RTB | October 7, 2005 01:06 PM

SandyK, if you're going to apply that kind of logic to the Roman Catholic Church, why don't you apply the same logic to the ACLU? If Thomas needs to recuse himself on every death penalty case and Scalia has to recuse himself on every case involving the executive branch, shouldn't Ginsburg recuse herself whenever the ACLU is involved?

The fact is Ethics rules are rules, not laws. Especially in the case of the SCOTUS, because it is up to the Judge to interpret said laws. I happen to think that Scalia, Thomas and Ginsburg are NOT corrupt, do you? If so, they can always be impeached. The system of checks and balances does NOT make anyone king.

Posted by: sw | October 7, 2005 01:10 PM

Nice to see this column recognized. Made hot blogs on VOIS.com blog search. congrats


Posted by: extreme one | October 7, 2005 01:15 PM

Debater Paul sent me an e-mail with this fascinating tidbit:

"As for political appointees-turned-Justices ruling on matters where they formally gave advice as lawyers, there is lamentable precedent for this. In 1971 William Rehnquist (then with the Justice Department) testified before a Senate committee in support of domestic spying against antiwar protesters by US Army Intelligence. In 1972, when a lawsuit challenging this spying reached the Supreme Court, Associate Justice Rehnquist refused to recuse himself and cast the fifth vote in a 5-4 decision favoring the army. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)."

Thanks, Paul -- great stuff. Keep 'em coming, Debaters!

Posted by: Emily Messner | October 7, 2005 01:35 PM


There is a clear difference between the ACLU and the Roman Catholic Church. The ACLU will accept women as the head of their organization, regard them as equal partners, and will advocate for their rights, and even their religious rights. So they don't violate Canon #2 of the ABA's Model Code of Judical Conduct (which would be a reason to recuse oneself).

Now tell me with the Roman Catholic Church be as open and accepting?

No, so no contest. :-)

BTW, when was the last time a SCOTUS judge was impeached? Do you think the legal profession (you do know most of the legislative branch is full of lawyers, right?) would bother to even try (and gain it's wrath)?

Now see the game conservatives are playing of not only controlling the SCOTUS, ensure the likes of Scalia and Thomas to openly defy the ABA ethics and do as they please? Control all three branches of government, then ethics won't matter -- DeLay shows the world that it never did matter in the first place, winning is all that counts.



Posted by: SandyK | October 7, 2005 01:52 PM

If this information is correct and Rehnquist was the deciding vote on a case involving civil rights after having testified for the government, one would expect a furor would have followed. It is disheartening to know that powerful government agency can usurp Constitutional freedoms. It has always been my belief (obviously a naive one) that the checks and balances of the Supreme Court are the last word on civil liberties when there is tyranny afoot. I now must accept that the republic is wending its way inexorably toward a (fictional?) dictatorship as described by Ayn Rand.

Posted by: Jenny from AZ | October 7, 2005 02:05 PM

What a surprise that Charles Krauthammer has finally begun to entertain doubts about the legality of President Bush's invasion of Iraq!

By suggesting that the Supreme Court nominee Ms Miers could be saddled with the contentious isse of the legality of the invasion of Iraq, Mr. Krauthammer seems to be questioning the very wisdom and sound judgment in going to war. He is worried that the egregious violations of human rights of detainees in Guantanamo Bay and Abu Graib might one day be exposed to the whole world for what they are - inhumane treatment unworthy of a civilized nation (that Krauthammer was deriding the Iraqi efforts at writing their Constitution, and continued cheering on as Alberto Gonzalez and Rumsfeld went about pouring scorn on Geneva Conventions is another matter).

Emily brings in Justice Antonin Scalia for comparison. If Justice Scalia did not recuse himself in a case involving duck-hunting buddy Dick Cheney why should Miers worry about recusing herself in an unknown future? After all, this White House has already refused to release relevant documents under the pretext of lawyer-client confidentiality AND national security.

This surely is not a win-win situation as Mr. Krauthammer seems to acknowledge grudgingly but with increasing candor unheard of before.

Posted by: Joe M. | October 7, 2005 02:07 PM

As diligently reported on http://www.shamelesspublicity.com that "whiff of sexism" surrounding Ms. Meirs' confirmation actually emanated from Senator Chuck Schumer's Jai Karate cologne...

Posted by: Don Keehotey | October 14, 2005 04:34 PM

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