Harriet Miers' supporters have often pointed to her understanding of the Bush administration's priorities as one of her strong suits. One prominent religious conservative even claimed that "if Harriet Miers didn't rule the way George W. Bush thought she would, he would see that as an act of betrayal and so would she."
But Harriet Miers' professional collaboration with the president -- and the secrecy surrounding it -- is also a cause for concern. Her roles as personal lawyer and White House staff secretary raise a series of unanswered legal questions about what kinds of cases Miers is unfit to judge. The White House papers with the answers are hidden behind a shield of executive privilege, and Miers' own vague answers on a recent questionnaire have left the public and the Senate completely in the dark.
When a Senate questionnaire recently asked Miers to discuss how she might respond to conflicts of interest arising from her government service, she dodged the question. Miers simply cited the relevant law and said she would "resolve any potential conflict of interest by abiding by both the spirit and the letter of the law." Senator Patrick Leahy, the ranking Democrat on the judiciary committee, said the candidate's responses to the questionnaire "range from incomplete to insulting." Miers apparently also dodged a recusal question in a private interview with Senator Dianne Feinstein, another Judiciary Committee Democrat.
Section 28-455 of the US Code requires a justice to recuse him- or herself "where [s]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."
If Miers cannot elaborate on her White House record -- at least to discuss potential conflicts of interest -- then the Senate is being asked to make a leap of faith where it should be engaged in advice and consent. Miers' reluctance to discuss her White House work and her refusal to offer substantive details on recusal are troubling and they should give any senator pause. They could be enough to torpedo her already precarious nomination.
Ironically, in picking such a close collaborator, the president may be depriving himself of a key vote on several cases that may soon reach the Supreme Court. Recent White House accounts suggest that Miers enjoyed a broad and intimate collaboration with the president, that Miers' "fingerprints are all over Mr. Bush's record in office." As a White House staffer, she "was the last person to see every scrap of paper headed for the Oval Office." On what kinds of cases should Miers be expected to recuse herself? We can't know without more information about Miers White House work. But the list likely includes national-security cases (particularly the legality of military trials for Guantanamo detainees) and perhaps even the constitutionality of the ban on "partial-birth" abortion. Among these, ominously, are the very subjects that Miers' supporters have been keenest to point to as her niche on the Court.
And who decides when a Justice Harriet Miers would recuse herself? Exactly one person: Justice Harriet Miers. Supreme Court recusals are self-judging, and if recent history is any indication then justices tend to give themselves the benefit of the doubt. Yes, Clarence Thomas recused himself from a case involving his son's school. But William Rehnquist asserted his right to sit on a Microsoft antitrust case while his son was an antitrust lawyer at Microsoft, and Antonin Scalia recently penned an ornery memo rejecting "a no-friends rule" raising his duck-hunt with Vice President Dick Cheney as grounds for recusal before sitting on Cheney's case.
Justices have a long history of refusing to recuse themselves. In 1870, Chief Justice Salmon P. Chase judged a case involving the issuance of greenback currency to fund the north during the civil war. In 1862, Chase himself had issued the greenbacks as Abraham Lincoln's Treasury Secretary. He effectively ruled his own behavior to have been unconstitutional.
Before divorcing and abandoning his wife, Julius Caesar famously remarked: "Caesar's wife must be above suspicion." Nobody can say whether Miers' work on these issues would actually compromise her independence as a judge -- but even appearance of impropriety is enough to warrant a recusal. Thankfully, recusal carries neither moral taint nor the implication that a judge lacks independence or maturity. In fact, at the appropriate moment it is the most -- and often only -- scrupulous thing a judge can do.
The Senate can't know how her work for the Bush White House might affect her judgment from the bench on particular cases, nor should anyone assume without proof that she'd be any less capable of judging events in which she was involved than Justice Chase. But the Supreme Court, the nation's final arbiter on many contentious political and cultural issues (not to mention the 2000 presidential election) must also be "above suspicion," and recusal is one way to guarantee that.
Will Miers refuse to recuse? The Senate must get concrete answers. The most obvious way to determine the range of cases she would need to refrain from judging would be for the White House to waive executive privilege regarding her tenure in the White House, but this option is such a non-starter that Charles Krauthammer recently suggested it as a pretext for Miers' withdrawal, a face-saving climb down from a looming confrontation with apoplectic and disappointed conservatives. Bush himself has already scorned the suggestion, calling it "a red line that I'm not willing to cross."
Though executive privilege is a murky and ill-defined area, legal experts say Miers can get around that stumbling block by simply offering an exhaustive list of legal issues on which she would publicly commit to recuse herself. Scrupulous disclosure on recusal in the form of a strong and specific statement would go a long way toward reassuring skeptics that Miers will be worthy of the leeway and deference that other justices currently claim, that she doesn't plan to be simply a member of the Bush White House wearing a judge's robes.
Daniel Benaim is a freelance journalist and a graduate student at The Fletcher School at Tufts.
