[[Certainly, nothing has been produced that would rise to the level of 'Nazis rule!' out of Miers, but were that to pop up, I would hope you'd see the necessity of withdrawing her nomination. A minor point, to be sure, but you stated and seem to continue to state that writings shouldn't be the only evidence used to disqualify. I disagree wholeheartedly. I think a single particularly egregious writing, on its own, would disqualify any nominee.]]
Certainly an egregious writing, if documented, would rise to such a level, I didn't say otherwise. But as you admitted, Miers has written nothing that rises to that level.
[[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.]]
I did not say she would never have to recuse herself, I am saying it would be an infrequrent occurence. Roberts will not have to recuse himself in the Hamdan case, he was a judge on an appeals court, not an advisor or counsel to the government. One has to assume he reached his opinion on the appeals court on the same basis he will reach an opinion on the Supreme Court, on the evidence presented. There are no grounds for Roberts to have to recuse himself. There is no stipulation in the federal code that prevents a judge having ruled on a case at one level and elevated to the next level from ruling again, as long as he feels he can rule fairly.
As far as Miers is concerned, if she advised the President on this issue, she would have to recuse herself, if she didn't, she would not have to. I believe Gonzalez was Bush's counsel at the time the Hamdan case arose, I could be wrong. Once a case is filed, it is in the hands of federal prosecutors, under guidance from the attorney general.
So no, Roberts will not be sitting on the Hamdan case. We shall see whether Miers will or not, but as WH counsel, if she's not going to produce her notes, the assumption should be on any case before the SCOTUS brought during her term of office, she would likely have to recuse. That is one big-ass arrow in the quiver to launch against the woman during the hearings.