"I accept the criticism and difference of opinion, but (I am sure you knew there was a 'but' coming) my statement infers an 'unwritten' ONLY or as the main basis for opinion. Your example, while an obvious exaggeration, rises to level that her writings, or lack thereof, do not rise to. My disqualification was not complete, only that it should not be a sole determinator, or necessarily the major one. I actually prefer putting it in perspective to disqualification."
Certainly, nothing has been produced that would rise to the level of 'Nazis rule!' out of Miers, but were that to pop up, I would hope you'd see the necessity of withdrawing her nomination. A minor point, to be sure, but you stated and seem to continue to state that writings shouldn't be the only evidence used to disqualify. I disagree wholeheartedly. I think a single particularly egregious writing, on its own, would disqualify any nominee.
"Recusal did come up in another thread, and while a legitimate point, it is not as major as some would paint it to be. Did Ginsberg recuse herself from any cases involving the ACLU ? By the same reasoning, why would Miers have to recuse herself from any case involving Bush, assuming there will be some?"
This ACLU-Ginsberg comparison is disingenuous. As John Wohlstetter has noted, "Under federal law, if Ms. Miers is confirmed, and has professionally advised on a matter that subsequently comes before her on the bench, she must recuse herself. Federal law is quite specific here. Title 28 U.S. Code sec. 455 covers recusal of judges, justices, and magistrate judges. Sec, 455 (b)(3) recites one ground for mandatory recusal: "Where [a judge, justice, magistrate judge] 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." Sec. 455 (e) adds: "No justice, judge or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b)."
One case already is wending its way to the Supreme Court: a July 15 unanimous decision by the U.S. Court of Appeals, D.C. Circuit, upholding the right of the government to detain and try unlawful combatants without giving detainees rights under the Geneva Conventions. One member of that three-judge panel was Chief Justice Roberts, who must thus recuse himself on appeal to the Supremes."
"If she is a good lawyer, she would have given him the pros and cons on any advice, which would hardly disqualify her."
Federal law says differently. Read the provision above.
[[Certainly, nothing has been produced that would rise to the level of 'Nazis rule!' out of Miers, but were that to pop up, I would hope you'd see the necessity of withdrawing her nomination. A minor point, to be sure, but you stated and seem to continue to state that writings shouldn't be the only evidence used to disqualify. I disagree wholeheartedly. I think a single particularly egregious writing, on its own, would disqualify any nominee.]]
Certainly an egregious writing, if documented, would rise to such a level, I didn't say otherwise. But as you admitted, Miers has written nothing that rises to that level.
[[One case already is wending its way to the Supreme Court: a July 15 unanimous decision by the U.S. Court of Appeals, D.C. Circuit, upholding the right of the government to detain and try unlawful combatants without giving detainees rights under the Geneva Conventions. One member of that three-judge panel was Chief Justice Roberts, who must thus recuse himself on appeal to the Supremes.]]
I did not say she would never have to recuse herself, I am saying it would be an infrequrent occurence. Roberts will not have to recuse himself in the Hamdan case, he was a judge on an appeals court, not an advisor or counsel to the government. One has to assume he reached his opinion on the appeals court on the same basis he will reach an opinion on the Supreme Court, on the evidence presented. There are no grounds for Roberts to have to recuse himself. There is no stipulation in the federal code that prevents a judge having ruled on a case at one level and elevated to the next level from ruling again, as long as he feels he can rule fairly.
As far as Miers is concerned, if she advised the President on this issue, she would have to recuse herself, if she didn't, she would not have to. I believe Gonzalez was Bush's counsel at the time the Hamdan case arose, I could be wrong. Once a case is filed, it is in the hands of federal prosecutors, under guidance from the attorney general.