Info Theory’s Paul Deignan continues to argue that Miers is a pro-Roe nominee, an assertion he bases on the positions staked out by the President and First Lady:
When President Bush says that Miers shares his judicial philosophy, he is not saying that his personal pro-life inclinations extend to overturning Roe. Laura Bush voaches for the veracity of this analysis. The pro-choice First Lady says, about Roe. “No, I don’t think that it should be overturned.†When asked about the thinking of her husband, she replied, “I would say, in general, George and I are on the same page on the issue.â€Â
The evidence that we now have is that Miers’ is personally pro-life but only as a matter of religious conviction. Unlike the Catholicism from which she converted, her evangelical beliefs are not at all a doctrinal determinant of judicial philosophy in regards to abortion.
I remain dubious on this—after all, if James Dobson is basing his support of Miers on something so intellectually trivial as “Intelligent Design” being offered as a counterweight to evolution in science classes (something that will be met with the intellectual derision it deserves once others offering creation science narratives—like, say, the Raelians—begin to sue for inclusion)—he most certainly risks destroying his own credibility with his followers.
Still, Paul’s points are not to be dismissed lightly. After all, one can be pro-life personally and still support Roe, though I suspect that a strict constructionist would find it to be bad law, and so would have to rely on stare decisis to thwart a confrontational and controversial revisitation of the ruling.
One of my concerns with Roberts what they he seemed to me a bit too deferential to stare decisis; after all, a bad law that becomes even more firmly entrenched by tradition is still a bad law, and the Court should be willing to admit previous mistakes without having to worry about charges of contemporary judicial arrogance or advancing a partisan political ideology.
Again, I am not concerned with how Miers would vote on a particular issue; I’m interested in the thinking that gets her there. In the case of abortion, I can certainly see where stare decisis might apply—just as I can recognize that the decision itself is a complex battle over ideas of privacy “rights” and ownership of self vs. the rights of the fetus and, more structurally, of the power of the Courts vs the provence of the legislature.
But other political positions are more revealing of a judicial philosophy; and for me, support for race-based affirmative action, however guarded or politically pragmatic, is one of those telling postions.
****
update: Dobson clarifies (h/t INDC Journal)
Years ago, I was arguing with a lawyer about Roe v. Wade. My position was that, if the Supremes overturned it, it would merely turn the issue back over to the states to do with what they would. His postition was that the Supremes would have to hang the decision on something, and it would probably be something like due process or equal protection, which would force them to make abortion illegal.
The WSJ had a bit about this issue today, using the example of Bush 1’s appointment of Justice Kennedy, who convinced Senator Helms in private that he was opposed to abortion and would work to over turn RvW. Didn’t quite work out that way. Kennedy actually voted to uphold Roe in Planned Parenthood v. Casey 1992.
The most important point they made in the editorial which I happen to agree with is the following-
“The point is that what matters aren’t Ms. Miers’s personal views on abortion or what church she attends. What matters is what she thinks about the judiciary, and specifically whether she believes it has the limited, Constitutional role that the Founders intended. The White House could help its credibility if it focused on that question and stopped touting her religious beliefs.”
A few points:
1. “Unlike the Catholicism from which she converted, her evangelical beliefs are not at all a doctrinal determinant of judicial philosophy in regards to abortion.”
I don’t know that Catholicism ever swayed John Kerry or Ted Kennedy, so I’m not sure where this is coming from. Indeed, I don’t know of any pro-choice Catholic who even thinks twice about the Church’s position on the matter.
2. “I suspect that a strict constructionist would find it to be bad law, and so would have to rely on stare decisis to thwart a confrontational and controversial revisitation of the ruling.”
The ruling has been revisited (and it was indeed a controversial revisit) in Planned Parenthood v. Casey, the case in which O’Connor was “supposed” to overrule Roe. The fact is, Roe has not been the law of the land since O’Connor wrote Casey. Basically, she went from a non-sensical—but strict and predictable—trimester approach to a non-sensical and mushy, unpredictable “balance the interests” approach. Roe is, technically, gone.
“But other political positions are more revealing of a judicial philosophy; and for me, support for race-based affirmative action, however guarded or politically pragmatic, is one of those telling postions.”
This is important.
While someone can be pro-choice and still believe Roe was wrong and should be overturned, it is unlikely that Miers believes affirmative action is unconstitutional. That is, how could one support a policy which is unconstitutional? Her support for affirmative action necessarily means she believes in its constitutionality.
For once, Jeff, I’m afraid I’m going to have to vehemently disagree with you regarding the Intelligent Design. The ‘derision’ you so neatly scoop up and place on the theory only shows your ignorance of the subject.
You, out of all people, surprise me with statements like that.
I mean, seriously. Take one look at Shannon Elizabeth’s breasts and tell me there is no God.
Dammit, SAAM, I was about to make an incredibly intelligent post about the propensity of Miers to either be pro or con on the abortion issue and you go and make me google Shannon Elizabeth.
Crap, all I can do now is wait for my wife to get out of the kitchen, take a bath, and have to look at that damn flannel nightgown again. I hate you!
Come on, right nuts! Meiers is the best thing to happen to the radical right since sliced bread.
She is obviouly love – struck with the Cretin – in – Chief. If appointed, she will be a nice little toadie: she will side with malevolent Scalia and moronic Thomas. The girl will do what she is told to do, and she will comply, lest she loses El Twitto’s love.
Stop getting your knickers into a twist and recognize that anointing yet another unqualified and incompetent hack to a crucial post is actually a GOOD thing for the Taliban—Oops, I meant the Republicans.
Don’t you have some math homework to do?
Get over yourselves, Kool-Aid heads.
The Meiers woman graduated from a nothing law school. She never clerked for a judge, nor has she ever argued a case in front of the Supreme court.
We know one thing about her though, and it is that she is madly in love with the Moron-in-Chief.
So, not to worry. She’ll be another Clarence Thomas: incompetent, stupid, and eager to please her Master.
Bush pere appointed Clarence-the-cretin to the Supreme Court. Bush fils cannot be left behind: he has to appoint some mediocre hack too…
Can you hear the big sucking sound up your cretinous President’s ass?
You better log off, EP. Your mom needs her computer back.
Uh, Jeff, he flunked his math, that’s why he has a degree in journalism!
Jeff,
Do you relize you are basing your belief in the idea that Dobson is not gulible.
I think you have a logical contradiction somewhere.
The money for your belt buckle is in the mail, Jeff.
How many cats do you have, EP?
Well, there’s that, and that I believe Bush is more concerned about his legacy than was his father.
But the bottom line is, knowing where Miers is on Roe doesn’t really tell me much; it’s some of her other positions that give me pause.
True, but it is notable that the entire pro-life community is being duped by a “pro-life” President who did make certain promises.
Note that Dobson is careful not to guarantee Miers like many of his faithful thought.
There are no assurances from Dobson that Miers is not pro-Roe regardless of his earlier implications. This should be shocking.
What gives me pause is this yo-yo feeling.
I am more worried about my own gullibility than Dobson’s. I am just looking SOOO hard for a straw to grasp so that I can believe that five years of loyalty was not misplaced…
And where did this Evil Progressive guy come from? He is about the most embarrassing troll I’ve ever seen here. His baiting skills fall at about entry level. You know – the level right below “Beginner”
Thanks to the wonders of cognative dissonance, people like EP who believe that we march in lockstep with the president can be entertained by the sight of us debating his decisions.
Go figure!
Marble: I have to disagree. Shannon Elisabeth’s breasts look exactly like what millions of years of men acting on their preferences should produce. The rest of the breasts out there are the result of people settling and having sex anyway.
Jeff: I went back and read your ID post and I think you really bent over backwards to give W the benefit of the doubt. The question he answered was as nuanced as it needed to be and the President gave an answer that was evasive enough to allow you to give it a meaning that suggested he wasn’t putting ID in the science classroom but still direct enough to imply that he wants to “teach the controversy” in the science classroom. As for whether ID and evolution are compatible teachable subjects – if in different venues – you have to account for IDs affirmative claim that it disproves Darwinian evolution. If IDs claims are correct, evolution isn’t actually a subject that merits study; if they aren’t (and we both know that they aren’t), ID isn’t even worthy of mention in a classroom (since it is bad theology too).
Charles —
You have to go pretty deep into the comments to find out that the term of ID itself was a matter of some confusion.
I was talking more in the soft sense of the kind criticized in Dawkins’ The Blind Watchmaker.
OK, but it is a bit of a stretch to think that Bush was talking about that sense of ID. You slammed (with justification) those on the left that attacked Bennett for reading preferred racist meanings into his words, but you were awful quick to attribute the most charitable, thoughtful meaning to the President.
“for reading” = “by reading”
Not so. instead, I was quick to attribute a very careful articulation of the issue to the President, which is completely in keeping with the nature of politicians, especially those put on the spot like he was.
You are certainly free to admire the President and his policies as much as you like, but very careful, off-the-cuff articulations when put on the spot isn’t exactly his strong suit – its yours.
If you say so. But the fact remains that at the time I made it quite clear that I thought his statement was very carefully made. To think that he hasn’t been groomed on how to discuss these issues is, it seems to me, more the product of you giving him too little credit than me giving him too much—though Glenn Reynolds and others agree with your take rather than mine.
But I gave my evidence and made my arguments. I don’t wish to make them again just now.
Fair enough, so I’ll just close with this: to the extent that it was a “groomed” answer, it was groomed to be ambiguous and appeal to multiple constituencies, each of which could then ascribe the meaning they preferred including, but not limited to, the one that made people like me bust a vein in his forehead, the one that made creationists sigh in admiration and the one that got you thinking about a future in which discussions of ID are moved into classes about cosmology. That is the mark of an effective politician.
See? We agree!
You can intend to fashion a statement so that it is perfectly ambiguous. Skilled politicians do this all the time.