Via Byron York at the Corner, a statement released by Senator Dianne Feinstein (D-CA):
Today, I received a copy of the April 11, 1989, questionnaire submitted by Texans United For Life to Harriet Miers during her campaign for the Dallas City Council and her responses to these questions.
The answers clearly reflect that Harriet Miers is opposed to Roe v. Wade. This raises very serious concerns about her ability to fairly apply the law without bias in this regard. It will be my intention to question her very carefully about these issues.
Compare Feinstein’s statement to the following statement by Miers, taken from transcript to a 1992 ABA meeting (reported on here):
When you understand, as I do, that the choice issue is inextricably entwined with the debate of total freedom for women, for empowerment, you fully understand the depth of caring and emotion which accompany the efforts like those in support of this resolution.
Patterico notes, “I can easily see such language as a central part of a badly written opinion explaining why, despite one’s personal opposition to Roe, it and Casey must be upheld due to stare decisis.”
Precisely. Whereas Feinstein’s concern is based on Miers’ political opposition to Roe (her support for a Constitutional Amendment), Patterico points to what could inform Ms Miers legal thinking on the issue—namely, her conceding the social seriousness of the issue, and what it means, both actually and symbolically, to the women’s movement.
However, what we absolutely don’t want is a Supreme Court Justice who views the court as a place from which to reach for legal consensus and cultural compromise—even though such an impulse proceeds from the best of intentions. This is what we had in O’Connor.
My concern is that Miers might consider her own conflicted views (the personal and the political vs. the legal) proof of her own fairness and fitness for the bench. Instead, legal conservatives want a justice who will ignore all such considerations and base opinions on a strong grounding in Constitutional law.
Which is why it is hardly elitist, I don’t think, to suggest that such a grounding is important in a SCOTUS nominee—particularly when the nominee in question has no real paper trail evincing a judicial philosophy.
I think what we’ll see is the 1989 questionnaire will be spun only as anti-abortion without any consideration of the 1992 statement. And probably a tipping point that will bring many Dems on board against Miers.
Let the Dems go after her. My only concern is that we’ll get Gonzales as a replacement nominee.
I don’t know–this seems like an awfully thin reed to me. It sounds like someone determined not to demonize opponents in the middle of a politically charged intra-organization fight. To get from there to “this softie will write bad law because she emphathizes with the other side” just looks like a big jump.
I’m sure Patterico can see that kind of language in an imagined SC opinion. But does that really tell us more about Miers or about Patterico’s opinion of Miers?
Contrariwise, I can also see that kind of statement prefacing a new paragraph that starts, “But the law is the law, and civil societies cannot function if the rules are changed based solely because judges are moved by the sincere passion of advocates.” Again, though, does that tell you more about Miers or more about me?
She’s done a great job of setting herself up for serious criticism by both liberals and conservatives. O’Connor II, indeed.
TW: “play,” as in, “the Waiting Game sucks. Let’s play Hungry Hungry Hippos!”
I will admit I’m a little more concerned about this passage from her questionnaire she submitted this morning:
“Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling….”
Is that a clue that “legitimate reliance interests” would lead her to keep a decision like Roe in the interests of stability, or would the continuing fights over the decision count as evidence that “the prior decision has proven unworkable” and thus should be overturned?
I can’t tell, and I’m not sure I should be able to. Knowing in advance means someone has decided in advance, and that cuts against the entire notion of deciding on the evidence and the law before you. But then again, judges ought to be predictable so that the law does not become a source of constant surprise and thereby become unreliable, randomly undercutting decisions and actions based on prior understandings. I’m uncertain on this rather uncomfortable question.
I agree that this is a pretty thin reed, slarrow. Just thought I should highlight the two statements, as they’re both likely to cause consternation.
Miers didn’t say either in a judicial context. And it’s possible that the ABA statement doesn’t reflect her actual thinking on the matter, but is rather a conciliatory political utterance. But at this point, we have to take information where we can get it.
“Is that a clue that “legitimate reliance interests†would lead her to keep a decision like Roe in the interests of stability, or would the continuing fights over the decision count as evidence that “the prior decision has proven unworkable†and thus should be overturned?”
In Planned Parenthood v. Casey, the “legitimate reliance interests” argument carried the day. That was precisely the reasoning O’Connor used to uphold Roe.
Hmmmm.
“Is that a clue that “legitimate reliance interests†would lead her to keep a decision like Roe ….”
Boy it just doesn’t get any better does it.
Frankly it feels like camping in the middle of a plague of mosquitoes. “Death by a million bug-bites”.
Yep.
Heck, I’m an atheist who’s pretty ambivalent about abortion, and I’m thoroughly opposed to Roe v. Wade.
Because it’s a terrible decision based on flimsy, reaching logic.
(BECAUSE OF THE REACHING!)
The irony is that if a mere fraction of the energy that’s been obsessively dedicated to protect an embarassing Supreme Court ruling were redirected into getting a privacy amendment actually ratified, we wouldn’t be having this discussion.
:peter
Amendment IX. The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.
Hmmmm.
“Amendment IX”
So.
I have certan inalienable unenumerated right to free donuts?
Mmmmm. Donuts.
I’d take it as a sign of judicial restaint that she was looking for a Constitutional Amendment rather than looking for a court to go activist in the other direction.
Nope, still don’t like her.
I’m really sick of hearing about Roe v. Wade. The right bitches and moans about the left having a litmus test when they are just as bad. Consequently, I don’t give a shit about it. Roe v. Wade does not define my world view.
In a post from this last weekend, Jeff discussed some thoughts TalkLeft’s Jeralyn Merritt had on Miers. Merritt included the following:
I wonder if, in light of Miers’ newly-revealed thoughts on Roe, Merritt might be having second thoughts.
Uh, prior to being appointed to the bench, 99.9999% of the judges have an opinion on something they are going to rule on in the future.
I’m with ll. RvW is low on my priorty list, but I do think we would all do better if it were taken out of federal hands. The more local a decision on abortion is, the better.
I am much more concerned with things like the Incumbent Protection Act (sometimes known as the “Soros Can Now Buy A Political Party Act”), Kelso, and other decisions that lead me to believe that our Supreme Court justices either can’t read, or have never seen the Constitution.
It’s pretty obvious to me that if something is not written in the Constitution, it is up to the states to decide. That’s what the Constitution actually says – at least to anyone not interested in pushing their social agenda on everyone else.
Perhaps I should’ve also included Merritt’s previous sentence in my last coment, where she says that “expecting Supreme Court nominees to say how they’d vote in a particular case” is “blather.” That seems relevant, in light of what Feinstein (who, I’m assuming, Merritt would consider a political ally) had to say.
I agree that litmus tests are a bad way to vet justices, no matter which side the litmus test comes from. I just wonder if Merritt would’ve written the same thing had she specifically known which side of the Roe issue Miers appears to have come down on.
There is at least something to be said for her recognition that a Constitutional amendment would be required to reverse Roe.
Why not? Help me understand?
In brief, because that is what Congress is for. Congress is the place where new laws are written to pander to the whims of the moment. The courts role is to evaluate law with regards to the Constitution and act as a legal flywheel if you will. Read the Federalist Papers if you really want to understand, it is a bit much for a comment board.
This is absolutely true.
However, these other, unenumerated rights do actually have to come from somewhere. The Supreme Court is supposed to be enforcing pre-existing law, not making new law. Amendment IX was not written to give legitimacy to a “right” that Harry Blackmun pulled out of his ass one day.
For example, in 1905, the Supreme Court decided a case called Lochner v. New York, which concerned a State law that limited the number of hours that bakery employees could work. It was your typical protectionist, anti-free-market economic regulation designed to give a special benefit to a particular labor group at the expense of consumers.
This type of regulation is pretty common these days, but back then, there were people who actually believed in and respected the idea of economic freedom.
The Supreme Court held this law to be unconstitutional, on the grounds that it violated with the bakery employers’ right to “liberty of contract.”
The Left raised holy hell over Lochner. They vilified the Court over it. They used it as the symbol of a Court run amok. They demanded strict construction of the Constitution, and reversal of Lochner on the grounds that “liberty of contract” appears nowhere in the text.
Sound familiar? Ah, the smell of irony!
The real insult in all of this is that the right to liberty of contract is exactly the kind of right that Amendment IX was designed to protect. It has a long (if somewhat spotty) history in the common law. It actually pre-dated the founding of our country.
In contrast, in Roe, Harry Blackmun merely reached into his ass and pulled out the previously unknown and unprecedented “right” to kill one’s children before they are born. This “right” appears nowhere in the pre-existing law. He invented it out of whole cloth. Even the Left has had to admit as much.
As an American citizen I would love to see Roe vs Wade overturned !
Plain and simple that we as American citizens need to take this choice back and stop murdering innocent babies.
Our country has moved forward with so many fewer morals than when I was young. Everything I learned from my Mother that was wrong then, is now right, and what was right then is NOW wrong.
There are TOO many methods of birth control available to the sexual active individuals. Abortion could be considered in the event of a RAPE, or when the pregnancy threatens the Mother’s life to carry a child to term.
I believe a conceived child HAS a soul from the second of conception, and that we are not capable of deciding to end a life.
I LQQK for moral overhaul in the USA, and I LQQK for it to be motivated by Justice Roberts, and Harriet Miers, IF she gets the opportunity to be confirmed.
Our morals have fallen by the wayside. What is next in the US? LEGAL EUTHANASIA ? NEVER !!!