Terrible On Terror

They say that patriotism is the last refuge of the scoundrel. Well, according to John Podhoretz, the GWOT is the last refuge of the Bush-fellating Miersian:

From e-mailer A.P., echoing something Hugh Hewitt has been hinting at: "Bush does not really care about conservatism or shifting the court in any direction - he only cares about war. He has a litmus test alright, but it's not "Will (s)he overturn Roe?" (as everybody assumes) but rather "Will (s)he set Jose Padilla loose?".

Courts have potential for a lot of mischief in the war against Islamofascism and in fact a district court ruled in favor of bin Laden's driver not long ago. That decision was subsequently overturned by certain Judge Roberts, and that judicial record (rather than his impressive resume - as everybody assumes) earned him the nomination.

Since it's been Miers' job to provide legal opinion about actions performed or considered by the Administration, the president must know very well where she stands on a multitude of legal questions pertaining to the war.

That would certainly be a mitigating argument to wield against us foes of the Miers nomination. Ultimately, if we don't win the GWOT, nothing else, including the makeup of the Supreme Court, will matter anyway, so it is imperative that presidential war-fighting powers not be hamstrung by peacenik judges.

There is, however, a little problem with that line of reasoning that should be very familiar to anybody who's been paying attention to the war against Islamic fundamentalism and the "war" for the High Court:

President Bush's choice of White House counsel Harriet Miers has prompted much criticism, but his friends miss perhaps the biggest problem with the nomination: the likelihood that if confirmed the new Justice, because of her White House work, will [have to] recuse herself in major cases where her vote could prove decisive - notably, war cases....

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)."

One case already is wending its way to the Supreme Court: a July 15 unanimous decision by the U.S. Court of Appeals, D.C. Circuit, upholding the right of the government to detain and try unlawful combatants without giving detainees rights under the Geneva Conventions. One member of that three-judge panel was Chief Justice Roberts, who must thus recuse himself on appeal to the Supremes.

If Miers also recuses this would deprive the Administration of two votes in a vital case where every vote is needed to prevail. This case is of utmost import, involving how suspects may be interrogated and whether they may be detained without criminal process. Only two votes - Scalia and Thomas - seem likely to affirm; four are very unlikely (Stevens, Souter, Ginsburg, Breyer); one (Kennedy) is iffy. With Roberts sidelined the O'Connor successor's vote in this case is essential to reach a 4-4 affirmation on appeal.

This, far more than his squishy position on abortion, was commonly held to be the reason why Bush refrained from nominating Attorney-General Alberto Gonzales to the SCOTUS, since Gonzales, as Harriet Miers' predecessor as White House Counsel, has been even more involved in war policymaking and for a longer period of time than Ms. Miers, and would have also had to recuse himself from related cases coming before the High Court.

So now the President makes the very same mistake, putting his warmaking powers in grave jeopardy, with another crony who is far less professionally qualified than the one he wanted to elevate in the first place. And all because he "was irked by repetitive demands that he satisfy the base with his Supreme Court appointments." An "I'll show THEM" appointment. A fit of childish, spiteful pique that could endanger national security.

Quite an education we're getting about Fearless Leader this week, huh?