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For me, the most significant question I have about the Miers nomination
is how often she would have to recuse herself in future cases before the
Supreme Court, in which she had been a legal advisor and screening issues for
President Bush, primarily in the war on terror and prisoner abuse policy, but
also about secrecy, aggressive measures to expand the Executive Branch, and
collusion with corporations who benefited from too-friendly policies. She is
severely compromised by conflict of interest. It’s that simple. All the rest, gender, qualifications, and philosophy amount to
differences in perspective. She can’t be any less qualified than Thomas was
when he was nominated. Ultra conservative Republicans should not be guaranteed
she will vote the way they want anymore than Democrats asking for guarantees
from Roberts that he would not vote a certain way. I oppose her for the fact that she is a direct employee of the
President of the United States, one whom has shown very little regard for
precedence in the law, who does not appear to have a great deal of independence
from the president she serves so closely. Historically, presidents who
attempted to “pack” the Supreme Court one way or the other were attacked for
weakening the balance of power, and maintaining a fair and balanced judiciary. Pres. Bush’s ‘golden opportunity’ of a
lifetime should be decided the same way. kwc Which
Will Harriet Miers Put First: The Constitution or President Bush? If Harriet Miers's
appointment to the Supreme Court is confirmed, she will take an oath to support
and defend the Constitution of the United States against all enemies, foreign
and domestic. But if it comes to a conflict between the Constitution and the
policies of President Bush, which will Ms. Miers choose? Some of the most
important cases likely to come before the Supreme Court will involve Bush
administration claims of unprecedented Presidential powers. Both liberals and
conservatives who believe in limited government under law should reject her
nomination, unless she can present convincing evidence that she will stand up
to her devoted boss in defense of the Constitution. Both Democratic and
Republican Senators should ask her: Does the President
have powers that are not subject to review by the courts? In the 2003 case of
Gherbi v. Bush, the Bush administration lawyers argued that US courts would not
have jurisdiction over detainees even if they were being summarily executed. In
its ruling, an astonished Ninth Circuit court wrote that the government
asserted the power to do with detainees as it will, when it pleases, without
compliance to any rule of law of any kind. The US government has never before
asserted such a grave and startling position - a position so extreme that it
raises the gravest concerns under both national and international law. Can Ms.
Miers show that she would block such a Presidential power grab? Can the President defy
a Congressional ban on torture? The Senate recently passed legislation
sponsored by Senator McCain outlawing torture of prisoners. The Constitution
says "The Congress shall have Power To ... make Rules concerning Captures
on Land and Water," but President Bush is threatening a veto on the
grounds that it would "restrict the president's authority to protect
Americans effectively from terrorist attack and bringing terrorists to
justice." If Congress passes the legislation and the President refuses to
abide by it, will Ms. Miers rule that he must? Can the President
unilaterally nullify the law? The War Crimes Act of 1996 makes it a federal
crime for any American to commit grave violations of the Geneva Conventions,
including the willful killing, torture or inhumane treatment of detainees. On
January 25, 2002, then-White House Counsel Alberto Gonzales wrote a memo
declaring provisions of the Geneva Conventions obsolete. It urged that an
opt-out from the Conventions substantially reduces the likelihood of
prosecution under the War Crimes Act. President Bush thereupon declared that
the Geneva Conventions did not apply to unlawful combatants captured in
Afghanistan. Does Ms. Miers believe
the President can nullify US law, international law, and a US treaty simply by
declaring it obsolete? Did she advise the President that (as many leading legal
experts have testified) Gonzales's Torture Memo was a travesty of the law? If a
member of the Bush administration charged with violating the War Crimes Act
came before the Supreme Court, would she back Presidential fiat or the rule of
law? Can the President
annul habeas corpus? The Supreme Court recently ruled in Rasul v. Bush that the
Bush administration cannot detain prisoners indefinitely, and must grant them
access to US courts. Can Miers demonstrate that she would stand up to President
Bush's effort to restrict a right that goes back to the Magna Carta? Should the Supreme
Court allow the President to violate the Constitution in the name of the war on
terrorism? In hopes of soothing conservative rancor over the Miers nomination,
Republican National Committee chairman Ken Mehlman stressed in a recent
conference call to conservative activists that Bush needed to confirm a justice
who would not interfere with the administration's management of the war on
terrorism. What would a Justice Miers do if President Bush pursued the war on
terrorism in ways that violate the Constitution? In short, where does
President Bush's nominee stand on the rule of law? Does she believe the
President is subject to the courts and Congress? Or will she let her former
boss get away with grave and startling assertions of Presidential power? It is
a question that should concern those on both the right and the left who believe
that even the President must be subject to the rule of law. Legal scholar Brendan Smith and historian Jeremy
Brecher are the editors, with Jill Cutler, of In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan/Holt, 2005). http://www.truthout.org/docs_2005/101405S.shtml |
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