It's about judicial philosophy, not personal views

By W. James Antle III
web posted October 24, 2005

Senate Judiciary Committee members may have described
Supreme Court nominee Harriet Miers’ questionnaire responses
as “incomplete to insulting.” But one item from the background
information released to the committee was revealing: the
disclosure that she favored a constitutional amendment that
would ban abortion during her 1989 campaign for Dallas City
Council.

Given that she took this position on a candidates’ survey for
Texans United for Life, perhaps it was an example of Miers
telling people on both sides of the issue what they wanted to
hear. But the combination of her survey responses, pro-life
financial contributions and stand against an American Bar
Association endorsement of Roe v. Wade­—along with a fair
amount of anecdotal evidence­—strongly suggests that Miers is
pro-life.

So does this mean that conservatives should support her
nomination? Only if you believe that a Supreme Court justice is a
kind of super-legislator whose chief duty is to vote the right way
on public policy issues—that is to say, if you repudiate
everything conservatives have been saying about the role of the
judiciary for at least the last 40 years.

It would be a major concession to the imperial judiciary if, as
Ann Coulter wrote, “even conservatives just hope like the
dickens the next king is a good one.”

Miers’ overall judicial philosophy still matters more than certainty
about her personal abortion views. That she believes abortion is
wrong or even that it should be illegal tells us nothing about
whether she would be bound by stare decisis on Roe.

We who are pro-life abhor the policy of abortion of demand
Roe imposed on our country. But the 1973 decision has also
long been recognized as a good test of how an aspiring jurist
sees the role of the courts. More than any other Supreme Court
ruling, Roe is symbolic of judicial arrogance, black-robed social
engineering and a determination to evade the original public
understanding of the Constitution.

A purely results-based opposition to Roe threatens to undermine
the coalition that supports constitutionalist judges. As John Tabin
observed in the online edition of The American Spectator,
“When judicial conservatives can no longer be sure that an anti-
Roe judge will be fairly strong across the board, they will begin
to part ways with their social conservative allies.”

Paradoxically, such a stance is also less likely to build an anti-
Roe majority on the Supreme Court. Antonin Scalia and
Clarence Thomas would overturn Roe, but where Chief Justice
John Roberts stands is unclear. But Roberts is unlikely to vote
for reversal on pro-life policy grounds alone.

Miers and the White House are also in a precarious position in
the Senate. Democrats—and some pro-choice Republicans like
Judiciary Committee Chairman Arlen Specter—are likely to
push Miers to either disavow her 1989 abortion views or
distinguish them from how she would rule as a justice. But
anything she says that might reassure these senators has the
potential to erode her already tenuous support from Senate
conservatives. The hearings could become all abortion, all the
time.

Miers’ meeting with Sen. Specter offers a preview. After their
courtesy call, Specter told the press that Miers agreed with the
penumbral privacy right that was the basis of the Supreme
Court’s Griswold v. Connecticut decision. This could be
construed as a hint of her views on privacy precedents and Roe.
When the statement reached the White House, Miers issued a
swift retraction, attributing Specter’s statement to a
“misunderstanding.” But she can’t have such misunderstandings
in full committee.

The Bush administration strategy that resulted in a 78 to 22
confirmation for Roberts has been abandoned and the early
results don’t look good.

What can be done? The White House must stop trying to
simultaneously argue that a.) Miers won’t legislate from the
bench and b.) she will legislate from the bench in a manner that
will please social conservatives. If their nominee is a
constitutionalist, she must clearly and emphatically articulate a
judicial philosophy consistent with that label.

If Miers is not a constitutionalist, then there can be no mistaking
her for a nominee in the mold of Clarence Thomas and Antonin
Scalia. At this crucial juncture in the Court’s history, an
appointee outside this mold does not merit conservative support.
It doesn’t suffice to know where Miers stood on abortion in
1989. We must know where she stands on the Constitution and
the role of the courts today.

W. James Antle III is an assistant editor of The American
Conservative and a senior editor for Enter Stage Right. The
views expressed above represent his alone.

Enter Stage Right -- http://www.enterstageright.com