Monday, October 03, 2005

The Miers mistake

At first glance, Harriet Miers seems like a typical Bush nominee. Hell, she’s a combination of a lot of Bush nominee characteristics, in fact. She’s got no real experience that would qualify her to serve on the Supreme Court other than that which seems to matter most to Bush—she’s been a trooper in his reign of error. Secondly, she’s worked for Bush when he was both a governor and president. This will allow the administration to again play its favorite game: “I’ve got a secret.” Already, Bill Frist has begun warning that senators on the judiciary committee shouldn’t ask for the records of “confidential” advice she’s given Bush. Despite the fact that Miers has no real record, Frist says that senators should decide on whether to confirm her "by looking at the individual’s record, testimony, and writings, without probing into confidential and privileged documents."

This would appear to set up Miers for smooth sailing through her confirmation. She has no public record on the issues to speak of and, because she’s been working for Bush, whatever private record that may exist will be blocked by Republican stonewalling.

Yet the nomination of Harriet Miers at this time may be seen as one of the Bush administration’s largest tactical errors.

Because Harriet Miers has so recently worked for this White House and many of the cases they pushed forward are on deck to be argued in front of the court this term, Miers will have to recuse herself from the decisions in those cases. If she’s going to recuse herself, then there should be no way for her to dodge questions about those specific cases. She can’t say that she’s not going to speak on issues that come before the court because, on cases like the administration's challenge to Oregon's "physician-assisted suicide" law, there’s no way that she, as former White House counsel, should be judging that case. Therefore, we should be able to tell whether or not she believes Oregon can make their own laws regarding end of life decisions. She can't very well argue that this case could come up again.

Knowing how this administration works, they don't want Miers to have to come clean about her views, but Bush’s penchant for elevating his friends to high places may finally have bitten him on the ass.

2 Comments:

Anonymous Anonymous said...

Recuse herself? Have we learned nothing after 5 long and horrifying years?

I recall the Cheney/Scalia duck hunting party to Patterson, Louisiana, caused no concern for Scalia re: recusing himself.

[An interesting aside -- apparently in south Louisiana where the state bills itself as a
"Sportsman's Paradise" -- the Cheney-Scalia trip caught the interest
of locals, because of the unusual
activity: "...two Black Hawk air combat RESCUE
helicopters, a line of armored sport utility vehicles
and a ring of federal agents and sheriff's deputies who
set up a security perimeter. The area was declared a
no-fly zone for other aircraft."

But I bet the locals can't currently find similar levels of support for their post-hurricane [2] survival needs!

Here are some more particulars: "The camp is owned by Wallace Carline, the head of
Diamond Services Corp., an oil services firm that is on
41 acres of waterfront property in Amelia, La. The
company provides oil dredging, pile driving, salvage
work, fabrication, pipe-rolling capability and general
oilfield construction."]

Here is Scalia's reply: "'I do not think my impartiality could reasonably be
questioned,' he said in a written response to The
Times. He said 'social contacts' between justices and
high-level government officials have not been seen as
improper, even when those officials have cases in the
courts that concern 'their official capacity, as
opposed to their personal capacity.'

Quoted items from: February 5, 2004
Los Angeles Times, By David G. Savage and Richard A. Serrano,
Times Staff Writers

and this on March 18, 2004, (AP) WASHINGTON

"A defiant Supreme Court Justice Antonin Scalia refused Thursday to remove himself from a case involving his good friend, Vice President Dick Cheney, dismissing suggestions of a conflict of interest.

"In an unusual 21-page memorandum, he rejected a request by the Sierra Club. The environmental group said it was improper for Scalia to take a hunting trip with Cheney while the court was considering whether the White House must release information about private meetings of Cheney's energy task force.

"Scalia said the remote Louisiana hunting camp used for a duck hunting and fishing trip "was not an intimate setting."

"The justice said he was guilty only of hunting with a friend and taking a free plane ride to get there. "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined," Scalia wrote.

"My recusal is required if ... my impartiality might reasonably be questioned," Scalia wrote. "Why would that result follow from my being in a sizable group of persons, in a hunting camp with the vice president, where I never hunted with him in the same blind or had other opportunity for private conversation?

"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."

Take that last paragrapgh to the bank -- it's the money quote.

11:29 AM  
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