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 firstname.lastname@example.org.
By Emily Messner |
October 7, 2005; 9:00 AM ET
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