Miers / White

Mon Oct 3 13:34:08 PDT 2005

A couple of questions: 

1) Does anyone know whether there are historical examples of Presidents nominating Justices  who were essentially their own lawyer,  - as Ms. Miers was and is, both personally, and officially, to serve during that  President's term.   (Of course, Jackson was Roosevelt's Attorney General, but this is the government's lawyer, not the President's lawyer) 

2) What do people think about whether, if confirmed, Ms Miers, during Bush's term,  would have to recuse herself on any issue determining the scope of the President's personal power (such as for example, Hamdi/Padilla issues involving the scope of the President's personal executive authority). I know this question came up regarding Gonzales who was also White House Counsel, but Miers has the additional credential of having personally represented the President, which would seem to make the case even stronger for recusal in any case which regarded the scope of the sitting President's personal power. 

3) And, Miers recusal would be determinative of these issues, woudln't it, given the current split. 

If  Ms. Miers does  recuse, this clearly makes it significantly less likely, doesn't it,  that the current Supreme Court will uphold the President's authority in this area. In Hamdi , only five justices (plurality plus Thomas) voted to uphold the President's statutory authority, even  on the  narrow facts of Hamdi (individual captured on the battlefield in a combat zone).  And of those five, four (the O'Connor Plurality)  held the due process clause significantly restricted the President's detention autohrity.  The remaining four would have rejected the President's authority outright, absence the suspension of habeas corpus (Scalia's position.) Only one,Thomas, would give the Prez a blank check.

Of those five upholding the President's power, only three remain.  Even counting Roberts as a sure vote for Prez, which I think is an open issue, regardless of his Circuit Court vote, that would mean only four current votes in favor of upholding even the limited Hamdi view of  Prez power, with four on record for even more restrictions on Presidential power. And, of course, who knows what the split is on how much process is due. 

Clearly,  Miers,  if confirmed, would be the swing justice on these issues, unless she recuses.  

If Miers doesn't recuse -    assuming she is a sure vote for Prez, the President's chances obviously would be secure, regardless of how the the case was decided below. (5 -4 for the President's position.) 

Of course, even if Miers does recuse, and Roberts votes for the president (he did in the C of A.), that would still leave a four/four tie.  And since, so far, the lower appellate courts have sided with the administration, perhaps ,  so maybe the administration's position is safe here anyway, even with a four/four tie- (unless  the Supremes accept cert on a case going against the administration's position - and there isn't one yet). 

Also, are there any rules against her discussing  deliberations with the President. I don't know what the policy is on this. I thought they were supposed to be secret? (And does recusal extend to conferences, or only to voting?)

yb 

Any thoughts ?

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Bob Sheridan
Sent: Mon 10/3/2005 12:40 PM
To: Douglas Laycock
Cc: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
Subject: Re: Miers / White

It didn't hurt White that he'd been a nationally known U. Colorado
running back who quit the NFL to accept a Rhodes Scholarship where, in
London, he met Ambassador Joseph Kennedy and son JFK.  It further didn't
hurt White that while serving in a Naval Intelligence unit in the
Pacific he investigated JFK's losing of his PT boat in the middle of a
straight, run down and cut in pieces by a Japanase warship, and gave JFK
a clean bill.  He later headed the JFK presidential campaign in
Colorado.  This does not in any way detract from White's intelligence,
excellent record on civil rights, or his attitude on law and order when
that was up for grabs.

If I were president, I think I'd tend to prefer someone I knew and had
confidence in over someone I only knew on paper, however sterling the
record.  LBJ certainly knew what he needed to know about Thurgood
Marshall, one of the few justices who ever did anything notable before
being elevated.

rs

Douglas Laycock wrote:

>It's not just Eugene; Nina Totenberg made the White analogy this
>morning.  She quoted Kennedy as saying "I need someone who's strong on
>civil rights and tough on law and order, and that's you Byron." 
>
>Two more nominated because they were close to the President are Sherman
>Minton and Harold Burton.
>
>
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX  78705
>   512-232-1341 (phone)
>   512-471-6988 (fax)
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
>Sent: Monday, October 03, 2005 11:53 AM
>To: CONLAWPROF at lists.ucla.edu
>Subject: Miers / White
>
>       Is it just me, or are there interesting panels between Harriet
>Miers' appointment and Byron White's?  Both had been lawyers rather than
>judges or academics; both came to Washington after being involved in the
>President's campaign, and after having known the President for some time
>before then.  Both, I take it, were appointed in large part because they
>had the President's trust.  (I know White had done spectacularly well in
>law school, and I don't know about Miers' record; but in any event, I
>suspect that his service in the Administration and his having the
>President's confidence were in any event more important than his law
>school grades.)
>
>       Obviously, the analogy -- or the slight analogy with Powell --
>is not intended to be perfect; and the White pattern brings up both
>highly regarded Justices like White and less regarded ones like Fortas.
>But it seems to me that Miers fits this tradition, which I suspect was
>also the pattern for many appointees of the Roosevelt Administration,
>more than the Scalia/Ginsburg/Breyer tradition; and comparing her to
>other judges in this tradition is more helpful than comparing her to the
>more modern pattern, in which the Court is unusually loaded with former
>judges and, to a smaller but still historically unusual extent, former
>academics.
>
>       Eugene
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