Mehlman stated that: "Judicial activism is interfering with the global war on terror by micromanaging decisions. Miers will be solid on executive prerogative." However, he then acknowledged that Miers "will have to recuse herself in some early cases."
This is big - see the flip.
The "early cases" referenced by Mehlman is probably a reference to Hamdan v. Rumsfeld.
Prof. Bainbridge asks the obvious, and in light of Mehlman's statement possibly rhetorical, question: "Did she support use of torture?"
The basis for recusal is 28 USC 455. It has two distinct substantive provisions that are relevant here. Subsection 455(a) provides that a justice "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Subsection 455(b) provides a set of additional circumstances in which a justice "shall also disqualify himself." In particular, subsection 455(b)(3) requires that a justice "disqualify himself ... [w]here he has served in government employment and in such capacity participated as counsel [or] adviser ... concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."
Now this is good fodder for the hearings. And it further complicates the Miers vote for Democratic Senators because, after all, wouldn't we be better off with a conservative vote recusing herself on Hamdan and other similar cases?