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?
By Brendan Smith and Jeremy Brecher, t r u t h o u t | Perspective, Friday
14 October 2005
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
