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Saturday, October 08, 2005

Muller on Miers

I haven't blogged on the Miers nomination, because, well, the observation that "there is nothing new under the sun" was true about thirty seconds after the blawgospheric heard her name.  However, I thought the  recent controversy regarding Jay Sekulow's comments in a White House conference call was worth further mention.

Eric Muller was there first.  Prof. Muller highlighted Sekulow's comment that:

I'm involved in three three cases at the Court this Term, and believe me:  I want Harriet Meirs up there voting on these critical cases."

"Filthy," objected Muller; "if Harriet Miers has an inkling that the White House is lining up Sekulow to make this particular pitch, why, I would say that's disqualifying right there."

Chris Bowers, at MyDD, echoed Prof. Muller and then upped the ante a wee bit:

The White House has said that she is going to vote on her personal beliefs. The White House has said that she will vote the way Bush wants her to vote. The White House has said that they are putting her on the court to swing some important cases that are about to come before the court. These are not things that a modern, representative democracy does. This is more than enough to demand that the Miers nomination be withdrawn. This is probably enough to demand Bush's impeachment, all by itself. Utterly grotesque. Recoil in horror indeed.

I almost always agree with Prof. Muller, but not today. 
  

The White House set up a conference call, in which various conservative voices tried to marshal arguments in support of the nominee.  One of those arguments was that she is a loyal Bush partisan.  But the objection isn't that some talking head said it on the call, the objection is that it is true.  She'll have a chance in the hearing, I'm sure, to declare her indepedence from the President.  The Senate can either believe or disbeliever that disclaimer.  At least now the committee has some inconsistent statements to press her with.

Another argument is that a litigant predicted that she will be a reliable vote for his cause.  There are three possibilities: (1) the attorney has inside knowledge based on conversations about these cases with Ms. Miers; (2) the attorney is extrapolating based on public information; and (3) the attorney is guessing, pressed into service by the President's aides. 

Option (1) is almost certainly not the case: if it were, Sekulow would be a fool - and based on his record he isn't - to blow the connection (putting ethics aside.)   

Option (2) seems about as likely as Option (3).  But whether Sekulow's comments are an informed or an outright guess based on public sources, who cares? 

The only possible harm, as Prof. Muller notes, is the unlikely possibility that Ms. Miers knew that Sekulow would say something like this.  Her failure to stop him would suggest an appearance of impropriety in future Sekulow-argued cases.   But what if instead of allowing his comments, she had released a statement that said something like: "I believe in a very expansive interpretation of the free exercise clause."  Same information content: can that statement be disqualifying? Don't we want her to say things like this so we can have an kabuki extravaganza honest debate about what the constitution ought to mean?

I tend to agree with Justice Scalia on this one.  If it is reasonable to believe that an optimistic hope in a White House conference call will bind a Justice of the Supreme Court, “the nation is in deeper trouble than I had imagined.”  And, in the end, I think the problem in this "process" isn't that folks are being too explicit about the information they have about a Justice's future voting pattern, is that those in the know are hiding the information they do have.   And, for that problem, shouldn't we allocate at least some blame to Chief Justice Roberts?  After all, the Chief's resume and manner were both so outstanding that it was highly likely that he would have been confirmed no matter how explicit he became about his ideology -- the dems might even have lost a filibuster battle against such a pleasant and brilliant nominee.  Roberts' refusal to permit more exploration of his ideology set a precedent that will likely make this confirmation hearing quite frustrating.  Comments by Sekulow, etc., as Orin Kerr points out, at least have the virtue of helping us learn a bit more about the nominee.  They are to be encouraged, not protested.

Posted by Dave Hoffman on October 8, 2005 at 12:11 AM in Current Affairs | Permalink

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Tax Prof Blog has is reporting that while nominee Harriet Miers was co-managing partner of Locke, Liddell & Sapp, the Dallas-based law firm provided investors with questionable legal opinions for contingent deferred swap (CDS) tax shelters marketed by ... [Read More]

Tracked on Oct 9, 2005 4:57:23 PM

Comments

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The naive reader, like myself, would be helped by a reminder of who Sekulow is, and why he matters.

Posted by: Adam | Oct 8, 2005 9:48:41 AM

Adam, check out the "record" link in the post.

Posted by: Dave Hoffman | Oct 8, 2005 11:47:57 AM

Naturally, Sekulow is free to say whatever he wants, and it's not surprising that he'd want a Bush nominee voting on his cases. My problem is not with Sekulow's words or thoughts.

The problem is with the White House. It is very publicly enlisting a lawyer with cases pending before the Court in the partisan effort to have her confirmed, providing a White-House-approved forum for him to do say that he wants her vote on his pending cases. Of course, at her Senate hearing -- under White House guidance -- she and her supporters will refuse to say anything about anything that could be seen as pertain ing to a pending case, because that would be unethical.

You can parse this 'til the cows come home. But it just smells.

Posted by: Eric | Oct 8, 2005 11:53:23 AM

By raising these various possibilities and needing to speculate, your post illustrates how these comments call into the question the independence and integrity of Miers with respect to those cases. I don't know the specific recusal standards applicable in this case, but one strong policy served by recusal (particularly at the SCOTUS level) is avoiding situations where actions create public doubt and distrust in the Court. It's not as if they went on a duck hunting trip together. It's as if after the trip Cheney issued a press release saying "everything is going to be OK with respect to that case."

Posted by: BTD Venkat | Oct 9, 2005 4:06:25 PM

Eric,

I just do not understand why this phone call - rather than the underlying truths that it highlights - is offensive. It seems to me that everyone knows that Presidents nominate justices in part because of predicted future votes. Being more open about what those predictions are appears to be likely to improve the information available to senators. If, when FDR nominated Frankfurter, he said something like: "We've some new deal cases coming up next term, and I want FF on the court when they do," would that smell as bad? Is the problem here that Sekulow is a private party? And, if so, and the white house didn't direct his comments (as seems highly likely) how is this much different from, say, a White House hosted chat room?

BTD Venkat: I disagree that Miers' "independance and integrity" can be called into question by idle chatter by an (uninformed) blawger like me. The notion that Justices have to have a monastic wall of separation and independance between them and the executive branch is a very recent phenomena. I do agree that if Sekulow had made the comment based on an actual conversation with Miers - Option 1 - then there would be a problem, which is why it was important to hear from Justice Scalia what actually happened on the duck hunting trip - but Option 1, in my opinion, is not the world we are living in.

Posted by: Dave Hoffman | Oct 9, 2005 9:43:34 PM

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