Would a Justice Miers recuse herself from key cases?
She may be obliged to refrain from voting on certain issues, ethicists say, if she helped to craft White House policies.
WASHINGTON — As a stealth nominee to the US Supreme Court, Harriet Miers enjoys strong protection against the prying gaze of Senate staff and journalists seeking to discover policy and legal advice she conveyed as White House counsel.
Wrapped in the mantle of executive privilege, the content of her involvement in heated intra-administration debates may never be fully known.
But one line of questioning during upcoming Senate Judiciary Committee hearings might prove particularly revealing in a different way: Are there any issues that would require Ms. Miers's recusal from deciding specific cases at the Supreme Court?
A full and truthful answer by Miers would not require her to reveal privileged information, according to legal analysts. But it could provide insight into a prospective justice's effectiveness during her first years on the high court.
A vote from a Justice Miers could prove decisive in a test of the Bush administration's expansive view of presidential power to wage the war on terror. It could be critical in determining the constitutionality of military commission trials of Al Qaeda suspects at the Guantánamo Bay prison camp. And she might cast the deciding vote upholding the federal law that bans so-called partial-birth abortion.
But not if she has to recuse herself because of her involvement in those same issues while at the White House. In that case, her vote on the high court would be rendered mute in at least some of the very issues of most importance to President Bush and his conservative base of support.
"She knows how deeply she was involved. The White House knows how deeply she was involved, and you certainly don't want to lose a key vote on a matter that is of such importance," says Jan LaRue, chief counsel of the conservative group Concerned Women For America.
"Folks in the White House need to be looking at that very strongly, and she needs to be considering it," Ms. LaRue says.
The issue arises at a time when conservative opposition to the Miers nomination is contributing to a deepening rift within Republican ranks. Right-wing critics of the Bush nomination say the president squandered an opportunity to place a strong, well-known conservative on the high court. Supporters of the president say Mr. Bush knows Miers well and that she will become a strong conservative justice.
Democrats have remained on the sidelines, interested but largely silent.
The recusal issue is not new. It first arose last June amid speculation that Bush might nominate Attorney General Alberto Gonzales to the high court. Many conservatives objected to Mr. Gonzales, a former White House counsel, saying he was not conservative enough. Some stressed that his role on the high court would be undercut by legal requirements that he recuse himself from policy and legal matters he handled for the president.
"Gonzales's recusal obligations under federal law would make it folly for President Bush to appoint him," wrote Edward Whelan in a June entry on the National Review's online service. "Gonzales would have to recuse himself from virtually every case of importance to the administration," said Mr. Whelan, president of the conservative Ethics and Public Policy Center.
Whelan has not announced a position on the Miers nomination. But she may face the same recusal issue, he said Wednesday in a phone interview. "The questions are highly fact-dependent, and I sure hope the White House took a careful look at them before nominating her."
Miers has served in several key posts in the White House since 2001, most recently as counsel to the president.
Federal law requires that justices and judges recuse themselves from deciding any case "in which [the justice's] impartiality might reasonably be questioned."
The law also requires disqualification whenever a justice or judge "has served in government 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."
Recusal decisions are generally made in response to a specific set of facts related to a particular case. Without knowing those facts, judicial ethics experts say, it is difficult to assess future recusal issues that might face a prospective justice.
"It is hard to talk in a vacuum," says Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society in Chicago. But she adds, "Most of the cases before the Supreme Court do not involve the president."
Ms. Gray and other judicial ethics experts say it will ultimately be up to Miers herself to decide whether her prior service in the White House would require her to stand down from consideration of a particular case or cases.
"With a Supreme Court justice, they basically sit in judgment of themselves," says Richard Flamm, a Berkeley, Calif., lawyer and author of "Judicial Disqualification: Recusal and Disqualification of Judges." "It is going to be up to her."
Such recusal decisions could depend on her character and personality, Mr. Flamm says. "Some judges, anytime there is even a whiff of any kind of appearance of impropriety, they will immediately stand down," he says. "Other judges dig their heels in and will fight to the death."
The recusal issue is likely to emerge during Miers's confirmation hearing, say ethics specialists. "Who knows what her role was, but she might disclose it in the hearings," says Les Abramson, a law professor and judicial ethics specialist at Louisville University's Brandeis School of Law.
"If she was in on the decisionmaking and policymaking [in the Bush White House], I think she has a problem," Professor Abramson says. "And I think senators can ask her questions at the hearing without getting into the content of her advice."
He adds, "They could present it in the context of how long is it going to be before we [have] a functioning court of nine, or are we going to have to constantly worry about disqualification issues."