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Friday, October 7, 2005  |  posted by Hugh Hewitt
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Read Marvin Olasky’s cover story for World on Harriet Miers.

And Austin Bay.

And of course, Beldar, who is becoming the most fact-based blogger on the nomination.

Dana Milbank reports on the one day truce between White House and anti-Miers conseravtives.

Charles Krauthammer and Bill Kristol are both calling for Miers to withdraw this morning. Such a move would be disastrous to the president, the right’s equivalent to the left’s demand that the president meet with Cindy Sheehan. Krauthammer raises the serious point about recusal, but the recusal requiriement is (1) limited to matters in which she had substantial and personal involvement, and (2)is decided solely by the SCOTUS member for whom recusal is asked. Some of the cases making their way to SCOTUS may have involved Miers in a direct and substantial way, but I think that is very unlikely. When supporters of her nomination argue, as I have, that the Court would benefit from a justice who has spent four post 9/11 years in the White House, it is not so that she will be able to throw her weight into upholding Gitmo procedures, but so that cases involving Article II powers across the board will have the benefit of scrutiny by someone who deeply understands the urgency behind “energy in the Executive,” too quote Hamilton. Dozens of cases over the next two decades will touch on the GWOT, and on related issues. The recusal issue is a straw man, and seven years of DOJ service didn’t stop Robert Jackson from able service as a justice, nor did his term as Chief American Prosecutor at Nuremberg prevent him from opining on presidential powers in Korematsu. UPDATE: Bonehead argument alert. Korematsu was decided in 1944, though Jackson did return to SCOTUS post Nuremburg. The Wickard argument remains on point.

Here is a recent opinion on recusal from Justice Scalia. Recusal is required if a justice’s “impartiality might reasonably be questioned.” Scalia wrote “A rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling.” See especially Justice Scalia’s discussion of Justice Jackson participation in the Wickard case, which concerned New Deal regulations concerning wheat grown for private consumption and which was decided less than a year after Jackson was sent by FDR from DOJ to SCOTUS, and less than a month after spending a weekend with Roosevelt.

Recusal may impact a handful of Miers decisions, and maybe none at all, but it is not an argument against her confirmation.

Mark Levin correctly focuses on the John McCain-led Gang of 14’s role in the nomination melt-down. I hope the east coast conservatives also know that McCain’s support for the pro-choice candidate in Tuesday’s special election to replace Chris Cox, drained 16% of the votes away from the Club for Growth-supported John Campbell, who reached 46% in the 17 person race, but thanks to McCain, didn’t get to 50% plus 1, and thus must campaign another nine weeks, spend another round of scare dollars, and miss all votes between now and early December.

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