The right wing is certainly unhappy with their commander in chief on the Supreme Court front. For once, right wingnuts have better arguments against the Bushrovers than the lefties. The execrable Michele Malkin provides a great roundup.
One of the more practical arguments from this right side of the debate questions what pragmatic use Ms. Miers will be in any issue before the Court that is related to what she worked on as White House counsel. The "worst" case assumes that this includes prisoner of non-war policy, partial-birth abortion, and the legality of administration activities in prosecuting their so-called Global War on Terror.
(subliminal telegraphing of my argument!—do you recognize this man?)
John Wohlstetter, writing in American Spectator, covers this anti-Miers position in "The Recusal Trap".
Under federal law, if Ms. Miers is confirmed, and has professionally advised on a matter that subsequently comes before her on the bench, she must recuse herself. Federal law is quite specific here. Title 28 U.S. Code sec. 455 covers recusal of judges, justices, and magistrate judges. Sec, 455 (b)(3) recites one ground for mandatory recusal: "Where [a judge, justice, magistrate judge] has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." Sec. 455 (e) adds: "No justice, judge or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b)."
Wohlstetter is associated with the Discovery Institute, one of the "non-partisan" organizations spearheading the drive for intelligent design creationism. If we need further provenance for his point of view on this as right wingnuttery (though perhaps cogent as well), Dumb-as-a-Bag-of-Krauthammers weighs in contra Miers in his Washington Post column:
But what does she bring to the bench?
This, say her advocates: We are now at war, and therefore the great issue of our time is the powers of the president, under Article II, to wage war. For four years Miers has been immersed in war-and-peace decisions and therefore will have a deep familiarity with the tough constitutional issues regarding detention, prisoner treatment and war powers.
Perhaps. We have no idea what her role in these decisions was. But to the extent that there was any role, it becomes a liability. For years — crucial years in the war on terrorism — she will have to recuse herself from judging the constitutionality of these decisions because she will have been a party to having made them in the first place. The Supreme Court will be left with an absent chair on precisely the laws-of-war issues to which she is supposed to bring so much.
Of course, we should take into account Scalia’s response to the motion of the Sierra Club to recuse himself from In Re: Cheney (Docket #03-475, related to the Energy Task Force case):
Let me respond, at the outset, to Sierra Club’s suggestion that I should "resolve any doubts in favor of recusal." Motion to Recuse 8. That might be sound advice if I were sitting on a Court of Appeals. But see In re Aguinda, 241 F. 3d 194, 201 (CA2 2000). There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case. Thus, as Justices stated in their 1993 Statement of Recusal Policy: "[W]e do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage. Even one unnecessary recusal impairs the functioning of the Court." (Available in Clerk of Court’s case file.) Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.
So we may imagine there is a circumstance where an unnecessary recusal might impair the functioning of the Supreme Court, and is therefore not prudent. (How about when the outcome of a presidential election is before the court?)
The White House has its own interesting reasons for soliciting right-wing support for Miers. Ken Mehlman ticked off three main points in a 10/6 RNC/White House concall with other conservative do-bees (summary notes from Savethecourt.org here, transcript from nocrony.com here, audio from CrooksAndLiars here, thanks feministing):
So we’ve . . . other speakers are going to talk about other issues but I think these are three very important things, number one, how do we avoid what those in the, what I like to call [4:27] people who grow in office, which is to say who would do up things do differently than we expect them to. I think the way we know that is cause this president knows his nominee better than ever before. Second, top advisor at a time when this president has made some incredibly effective decisions, and third her unique ability to understand how bad judicial activism is on the [4:50] critical issue of the global war on terror.
Talking point number three loosely translates as "she’ll trample on civil rights and judicial prerogative in the name of the GWoT". Not an unreasonably Rovian maneuver.
So—known quantity? Key advisor on incredibly effective decisions? Paid-off vote to cover GWoT civil-rights abuses?
My money is on none of these. I think they’re setting up for the impeachment.
They know that things are very dicey for Rove and Scooter (despite Judith Miller’s best attempts to go away and shut up). They know that DeLay won’t be in the House to cover their corrupt posteriors, and suspect that Frist will not be arranging the chairmanships of select committees in the near future. Cheney was Gerald Ford’s chief of staff, and a close observer of the drama and aftermath of the Nixon resignation. The key issue in defending the Oval Office (as the key lieutenants fall in the cross-fire) will be Executive Privilege. W will need to keep his bidness private in order to survive. His very own Supreme Court Justice will certainly know where the landmines are.
Let’s not loose sight of the context—we’re talking about strategists who are playing the ultimate power game. These are not people who will let judicial process, law, or a few thousand dead soldiers or a few hundred thousand dead foreign civilians prevent them from striving toward their ends. There hasn’t been this level of frank corruption in executive politics since—well, that’s a tough one. My sense is that on a dollar basis, the Bushrovers are far and away the modern world record holders. In this league, covering the Presidential ass is not just a political game, it is about the continuity of power and influence, and of the flow of greenbacks and oil, all under political attack now as never before in this administration. The current extreme level of political threat should lead us to look for correspondingly extreme countermoves by the Bushrovers. Buying a Supreme Court Justice is no big deal, if it ensures a key support in a time of constitutional need.
Wouldn’t you think of it yourself if that very Court had made you the President illegally in the first place?