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Document dispute snags Miers nomination

Due to her work as White House counsel, Harriet Miers will face the need to disqualify herself from at least some cases involving President Bush or the federal government, if she is confirmed as Supreme court justice.
Supreme court nominee Harriet Miers meets Senator Herbert Kohl (D-WI) in his office in Washington
Supreme Court nominee Harriet Miers meets with Sen. Herb Kohl, D-Wis., on Thursday.Joshua Roberts / Reuters
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President Bush said Monday he will not give senators internal White House documents about the work Supreme Court nominee Harriet Miers has done as Bush’s counsel.

To determine whether Miers has the requisite experience dealing with constitutional issues to deserve a job on the court, both Republican and Democratic senators want to explore the work Miers has done on issues such as the detainees being held at the Guantanamo Navy Base in Cuba.

But on Monday Bush said he would not turn over any records of his conversations with Miers that might undermine the confidentiality that he or any president needs to confer with his counsel. “It’s a red line I’m not willing to cross,” Bush said.

The president said senators had asked him for documents that would reveal "the decision-making process, what her recommendations were. And that would breach very important confidentiality.”

Although he did not use the phrase, what Bush was invoking is called the "deliberative privilege," the ability of the White House to withhold documents that reveal closed-door deliberations of the president and his aides.

The purpose of the deliberative privilege is to ensure full and candid discussions within the executive branch prior to the president’s making a decision on a particular policy; without that confidentiality, such discussions might be inhibited by the fear they'd later be made public.

But late Monday Senate Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., told reporters he was negotiating with White House officials to try to reach a compromise in which some documents would be given to the committee.

"We've not asked what advice she gave him. That's the privileged area; we've not asked for that," Specter said. He said that he'd asked the White House for a list of the subject areas that Miers worked on as counsel to the president.

Judiciary Committee counsel Mike O'Neill told reporters that he had a two-and-a-half hour conversation with White House officials on the Miers materials the committee is seeking. Referring to the negotiations, O'Neill said, "Thus far it seems like they are progressing well."

But Specter's statement raised a difficulty: How could the White House turn over truly revealing documents that illustrate the depth of her involvement in major issues such as Guantanamo detainees without violating the deliberative privilege?

Specter repeated statements he has made before: "The whole confirmation process is in her hands. If she does well (in her public testimony) she will be confirmed. It's up to her as to how well she does."

Standoff could scuttle nomination
Bush's statement sets up a standoff that could sink the Miers nomination — because senators might not be able to determine on what issues Miers worked and thus won't be able to figure out on what future cases Miers would need to disqualify herself, if she wins confirmation to the high court.

Due to her work as White House counsel, Miers will face the need to disqualify herself from at least some cases involving Bush or the federal government. The federal statute on disqualification, also known as recusal, requires any justice or judge to not take part “in any proceeding in which her impartiality might reasonably be questioned.”

That same statute says Miers would need to disqualify herself because she “has served in governmental employment and in such capacity participated as counsel (or) adviser... or expressed an opinion concerning the merits of the particular case in controversy.”

Since her appointment as Bush’s counsel in February and prior to that as his deputy chief of staff, Miers has “participated as counsel” and likely has “expressed an opinion” regarding matters, such as the Guantanamo detainee cases, which are now working their way up through the appeals courts for Supreme Court review.

Miers vows to abide by recusal rule
In her response to a Senate Judiciary Committee questionnaire last week, Miers pledged to abide by the letter and spirit of the recusal statute.

In its 2004-2005 term, which ended in June, the Supreme Court handed down 80 decisions. In 20 of the, the federal government or a federal agency was a party. Several others involved federal statutes such as the Americans with Disabilities Act.

Judiciary Committee member Sen. Dianne Feinstein, D-Calif., said late Monday that no previous president had ever nominated somebody from his White House staff to serve on the Supreme Court. "This puts a particular burden on the president to be able to provide the documentation that indicates why she is credentialed and qualified to be a Supreme Court justice," Feinstein said.

Feinstein added, "If she was involved in conversations on torture, on detainees, that kind of thing we'd like to know that, to question her about it," she added.

Nominee ‘wouldn't answer’
Feinstein said on the CBS program "Face the Nation" on Sunday that during her interview with Miers last week, "I asked her if she would recuse herself if any issue connected with this president came before the court, and she wouldn't answer that question. For me, that's a very important question. The only answer in my view is 'yes' (she must recuse herself) because she has been so closely associated (with the president) as White House counsel."

“If you’ve been White House counsel and a number of issues are on their way up to the Supreme Court and arrive at the Supreme Court, then one would assume if you’re the one who’ve developed the arguments, you shouldn’t be hearing the case,” senior Judiciary Committee Democrat Sen. Patrick Leahy, D-Vt., said last week. “We’d like to know what things she worked on so we can ask the appropriate questions on recusal.”

He added, “If your law firm was in effect the White House and you’re working on a case or issue, something that may be litigated to the Supreme Court, most people would assume you wouldn’t vote on it (as a justice).  Otherwise they’ll think the fix is in.”

In 1962, when Byron White went from serving as deputy attorney general to joining the Supreme Court as President Kennedy's appointee, he recused himself from some matters, mostly routine denials of appeals in criminal cases, according to his biographer, Professor Dennis Hutchinson of the University of Chicago Law School.

"The problem with Miers is that none of the issues she would have confronted as White House counsel could be deemed routine," Hutchinson said.

The confirmation hearing is the only chance senators have to extract a pledge from the Supreme Court nominee that she will recuse herself in cases where an apparent conflict of interest exists.

After an initial response to a Senate questionnaire that senators found skimpy, Leahy and Specter asked Miers to supply “details concerning the specific matters you handled, the constitutional issues presented in those matters and the positions you took related to those issues.”

She has until Wednesday to do so.

Recusal issue played down
A Republican senator on the Judiciary Committee, South Carolina’s Lindsey Graham, played down the importance of the recusal question.

“To understand what might be subject to her recusal is an important thing for us to know,” said Graham Thursday. “But some of the matters she worked on were litigation matters, clearly attorney–client relationship correspondence. And that, to me, trumps recusal. So I would not expect the White House — in a request to make sure we know what she might be recused from deciding — to violate the attorney-client privilege or executive privilege.”

Graham added that the fact Miers might need to disqualify herself in some cases should not bar her or any other lawyer who has served in a top-level executive branch job from being considered for a place on the high court.

“We do not want to take off the table people like the White House counsel or the attorney general,” Graham said. “(William) Rehnquist was an assistant attorney general (prior to becoming a justice in 1972) so in theory everything he worked could be taken off the table. That to me is one of the least of our worries. The first job in advise and consent is to find out if she is qualified, if she possesses legal experience, character and intelligence to do the job.”