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Conservative law professor Steven Bainbridge live blogged a conference call with Ken Mehlman today on the Miers nomination.  You can read the transcript here.  Much of it is unsurprising, such as the Mehlman's confirmation that Miers supported affirmative action, but one statement sticks out.

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.

Why?  GW probably gave the answer in his weekly radio address on Saturday:

As counsel, Ms. Miers addresses complex matters of constitutional law, serves as the chief legal advisor during regular meetings of the National Security Council, and handles sensitive issues of executive-congressional relations, among many other essential duties.

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?

Originally posted to cityduck on Wed Oct 12, 2005 at 03:06 PM PDT.

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Comment Preferences

  •  Hamdan or Hamdi? n/t (none)

    Give me Liberty or give me death!

    by guyermo on Wed Oct 12, 2005 at 03:00:44 PM PDT

    •  Hamdan. (none)
      Hamdi came down in 2004.

      Hamdan is likely to be accepted for review at any time.  They've kicked over its conference several times already.  

    •  Hamdan (none)
      Hamdan v. Rumsfeld is a case John Roberts handed back on July 15th on the appellate level, turning back a challenge to the military commissions that the Bush administration intends to use to try several of those being held as "enemy combatants" at the Guantánamo Bay naval base.

      Lawyers for Salim Ahmed Hamdan, described as a bodyguard and driver for Osama bin Laden when he was captured in Afghanistan in 2001, have appealed the case to the Supreme Court. (Roberts will recuse himself if the case is heard at there.)

      I don't know offhand how Miers fits in offhand with Hamdan. Might you have your cases confused? Miers should, of course, be questioned on the Bush Administration's new policies on torture...

      "[I]n all due respect to your profession [journalism], you do a very good job of protecting the leakers." -- Bush on Oct 7, 2003

      by QuickSilver on Wed Oct 12, 2005 at 03:18:37 PM PDT

      [ Parent ]

      •  Miers role in Hamdan (none)
        She may well have been advising GW on the Constitutionality of its handling of enemy combatants.  She may also have advised him on the litigation strategy for the case.

        I don't think Roberts needs to recuse himself, but if he did, that would be a 4-3 liberal/conservative lineup hearing the case.

        •  thanks for that (none)
          Harriet knows too much, period. I'm sure she had an earful about the 2003 State of the Union address, and WHIG, and Karl's indiscretions, and...

          "[I]n all due respect to your profession [journalism], you do a very good job of protecting the leakers." -- Bush on Oct 7, 2003

          by QuickSilver on Wed Oct 12, 2005 at 03:28:06 PM PDT

          [ Parent ]

        •  How Can You Say That? (none)
          Chief Justice Roberts previously adjudicated the Hamdan case while serving on the Court of Appeals and he stated during the course of the confirmation proceedings that he would recuse himself from any case where this was true.
      •  Thanks. (none)
        I was completely unfamiliar with this particular case.

        Give me Liberty or give me death!

        by guyermo on Wed Oct 12, 2005 at 03:43:26 PM PDT

        [ Parent ]

  •  great find, cd; and good question! (none)

    ...Tengo una remera del Che y no sé por qué...

    by PhillyGal on Wed Oct 12, 2005 at 03:01:34 PM PDT

    •  Executive prerogative under the Patriot Act (none)
      is THE reason Miers got the nod.  This is the second time Mehlman has mentioned this in conference call.  The difference this time is that he mentions recusal -- something the public and the Congress have virtually no power over.

      This nomination is about preserving and strengthening executive power in the War on Terror.  We must INSIST Democrats on the Jud. Com. raise the extra-constitutional measures assumed by BushCo in the context of the Miers nomination.

      I'm starting to think this whole Dobson/Christian voting thing is a Trojan Horse.

      •  Recusal-not likely (none)
        Just consider Scalia in the Cheney energy task force case.

        What's the remedy for a judge who refuses to recuse him/herself?

        If George Bush is so opposed to abortions, how do you explain Iraq and Katrina?

        by occams hatchet on Wed Oct 12, 2005 at 03:38:49 PM PDT

        [ Parent ]

        •  Different issue. (none)
          In that situation there was a bit of a judgment call as it fell under the "improper appearance" prong of the staute.  Scalia could reasonably contend that having lunch with the VP did not call into question his impartiality.  

          In Miers' situation, there is not room for that sort of judgment call.  The standard is whether she advised the President on the treatment of detainees not "improper appearance."  If she rendered the advice, then she's has to recuse herself.  And Mehlman appears to be explicitly stating that she will have to recuse herself, and he's a WH proxy.

          •  Not the way I read 28 USC 455 (none)
            (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

              (b) He shall also disqualify himself in the following circumstances:

                  (1) Where he has a personal bias or prejudice concerning a party

            It seems reasonabel to me to say that duck hunting with Cheney puts Scalia squarely into both of those criteria.

            But then again, I'm not a Republican.

            If George Bush is so opposed to abortions, how do you explain Iraq and Katrina?

            by occams hatchet on Wed Oct 12, 2005 at 04:11:24 PM PDT

            [ Parent ]

        •  Purr-fect Example (none)
          and even germaine to Iraq evasion.  Do you take your  '4' with an olive or twist?
  •  Damnit! (none)
    It's NOT torture, okay?!!!  Get it through your thick heads, people!!!!  It's "extracting information!"

    What the hell is wrong with people here????!!!!!

    Triangulation is not a guiding principle. It's a tactic.

    by Bob Johnson on Wed Oct 12, 2005 at 03:02:29 PM PDT

  •  There is whiff of this (none)
    at redstate....their new battle cry is that miers will strongly support the War of Terror...I...ah...mean support the War ON Terror.

    If not us, who? If not now, when? L. Feuctwanger Gore/Clark 2008

    by mattes on Wed Oct 12, 2005 at 03:04:33 PM PDT

  •  But can you trust her to recuse herself? (none)
    Two of the five justices on Bush v. Gore should have recused themselves. Fat lot of good that did all of us.

    Boethius: Empires fall.

    by Wee Mama on Wed Oct 12, 2005 at 03:05:27 PM PDT

    •  What about Bush? (none)
      When do we get to where he recuses himself? From the country?
    •  Two points. (4.00)
      First, this is the frigging head of the RNC saying she's going to have to recuse herself in a call to the party faithfull.  I don't think he made this comment in a vacuum.  It's an issue that people have been thinking about since Gonzo was first named as a possible candidate.

      Second, this is not at all analogous to Bush v. Gore.  In Bush v. Gore there was no real argument for recusal.  Here, Miers may well have worked on and advised the President on these cases.

      •  in Gore v. Bush (none)
        two of the justices had family members on the legal teams representing Bush. That's recusal time in Iowa, at least. I would like to think she would but there is simply no power to force her to if she chooses to remain on a case.

        Boethius: Empires fall.

        by Wee Mama on Wed Oct 12, 2005 at 03:35:22 PM PDT

        [ Parent ]

        •  But that's not the S.Ct. recusal policy. (none)
          Here's an item from that addresses the S.Ct. recusal policy:

          Chief Justice John G. Roberts, Jr., in his first formal action on his first day on the job, on Friday adopted the policy followed for years by most of his new colleagues on when he would take himself out of pending cases -- in other words, his recusal policy. The Supreme Court noted in a statement that he had adopted a declaration that seven members of the Court had made nearly 12 years ago on the subject.

          The policy deals with recusal when a Justice has a spouse, children or other near-relative who are or may become practicing attorneys. The new Chief Justice's wife, Jane Sullivan Roberts, is a partner at the Washington offices of Pillsbury Winthrop Shaw and Pittman. It may be a little too early to anticipate whether either of his two young children would someday become lawyers, but that issue could arise at some point during his service.

          The recusal policy specifies that, if a covered relative is an associate in a law firm involved in a case before the Court, but has not taken part in it at the Court or previously, the Justice will be free to participate.

          The policy deals separately with situations when a lawyer in the family has taken part in a case at an earlier stage, or is a partner in a firm appearing before the Court. If the family members falls into either of those two categories, recusal would occur if the Justice knows the relative that has "an interest that could be substantially affected by the outcome" of the case, or when a Justice's "impartiality might reasonably be questioned."

          In other words, mere status as a partner, or as an attorney previously involved, does not dictate automatic recusal. But the policy goes on to outline special situations that would result in recusal when a relative was in either of those broad categories, which are found in the federal recusal law, 28 U.S.C. 455.

          It specifies that if the relative is a partner in a firm appearing before the Court, the Justice would recuse in any case involving that firm "unless we have received from the firm written assurance that income from Supreme Court litiation is, on a permanent basis, excluded from our relatives' partnership shares."

          In addition, it provides that if the relative was the lead counsel in a case at an earlier stage, recusal would occur, on the theory that the outcome of the case even at a later stage "might reasonably be thought capable of substantially enhancing or damaging his or her professional reputation."

          Two of the present Justices have not adopted that policy statement: Justice David H. Souter, who was on the Court in 1993 when the policy was written but who had no relatives covered by its terms, and Justice Stephen G. Breyer, not then on the Court but also currently without any relatives covered by it.

          Chief Justice Roberts had told the Senate Judiciary Committee that he would recuse himself from any case on which he had participated as a judge on the D.C. Circuit. He has not said publicly what policy he would follow with regard to cases in which he or his family may have financial investments, but most Justices have remained out of such cases.

  •  Hmmm....appoint enough (none)
    Supreme Court Justices to dismantle the Supreme Court??
  •  yes, there will be a lot of recussal (none)
    as I pointed out before, this buhs cheerleader has touched several controversial aspects of this administration.

    A reminder, again, of what she dealt with:

    Working with her staff of 13 lawyers, and in cooperation with the Justice Department, Miers' office provides guidance on issues from the legal parameters for the war on terrorism to presidential speeches. Journal -Gazette, 6/14/05

    There are many cases in the lower courts about this war and this administration, some of which will make their way up to the supreme court. It'll be interesting how she'll addess it.

  •  Not for the faint of heart! (none)

    as diaried by Serephin

    Mehlman gave three primary reasons for the Meirs decision today during the 90 minute Republican Conference Call on Meirs:

    1. Avoid a Souter. Bush knows this gal.

    2. Top Advisor on so many of his so very successful policies and plans to date. "Fact is that she is his key advisor on these issues."

    3. Understands implicitely the point of view of the Administration and the problem with judicial activism relating to "its ability to carry out its leadership in the war on terror."
  •  Line of questioning: (none)
    1. Do treaties ratified by the Senate hold the force of law?
    2. Were the (relevant) Geneva conventions -- which define both torture and proper treatment of detainees (whether or not they are POWs) -- ratified by the Senate?
    3. From where in the Constitution of the US does the authority spring for the Executive to dispense with or disregard a law or ratified treaty?

    Maybe you even skip over #2 if it looks like she won't answer.  

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