Retreat

Townhall ^ | Oct. 6, 2005 | Charles Krauthammer

[Vision]

Is this true that Harry Reid suggested her?

Yes

[Congressman Billybob]

In general, when a person has prior experience with a subject and then becomes a judge, he/she is disqualified from sitting on a case involving that subject. There are two exceptions to that general rule.

When a judge is confirmed to a higher court, he/she is not disqualified from considering an appeal of that case. The rule is that performing judicial duties should not disqualify a judge in the future.

The other exception is the Rule of Necessity. When lower court federal judges brought a case against the government asking for a decision that they were entitled to an immediate raise, obviously the outcome of the case would affect ALL judges in the federal system. In order not to make a decision on the case impossible -- all judges disqualified -- the lower courts, and Supreme Court, decided the case under this Rule.

The Rule of Necessity might apply if the Court would otherwise be unable (4 to 4 tie) to decide a case concerning the War Powers Act, declaration of war, etc.

In short, you raise a serious question. But there are ways to deal with such a problem, which have been used in the past.

Congressman Billybob

Latest column: "Harriet Miers and the 'Pigpen' Press"

[dogbyte12]

I disagree with you on the 4-4 tie thing. 4-4 tie equals the lower court ruling stands as a rule doesn't it? This has come up in the past with judges missing, or recused, and whatever the lower court rules stands whenever we are stuck at 4-4.

The President's people have been pushing the fact that she was the gatekeeper for every paper that went on the President's desk. She advised him on every legal issue in some sense it could be argued. There is a strong case that she would have to recuse herself from alot of things, especially regarding the war on terror. This means the appeals court will hold alot of sway.

[Congressman Billybob]

You are right that a 4-4 decision on the Supreme Court leaves the lower court decision standing. The last time I'm aware of that happening concerned a copyright case on a Jack Benny movie in the 1940s.

However, if and when the next "war and peace" question reaches the Supreme Court, and there will probably be several of them, it is important to have a Supreme Court decision on that. The nation will be shortchanged if the Court knocks itself out of the equation, leaving the lower court decision as the last word on the subject.

My other post in this thread deals with the two exceptions to the rule of recusal. Either or both of those might deal with this problem. Charles Krauthammer is just plain wrong on this.

Consider the suggestions from time to time that Bush should nominate a member of the Senate. Would that mean that a Justice who used to be a Senator would be disqualified from any case on a law that he/she had voted on as a Senator? Think it through. Krauthammer is (atypically) wrong.

John / Billybob

[lepton]

like the question of whether the Geneva Convention should apply to illegal combatants.

This is actually a fairly straightforward issue. If they are illegal combatants, they are not protected. If you are at all familiar with the Geneva Conventions, the media and the ACLU would not be able to confuse you.