How Do We Know Miers Is Pro-Roe?

info-theory.blogspot.com ^ | 10/16/2005 | Paul Deignan

[SteveH]

Overview: How do we know Miers is pro-Roe?

info-theory.blogspot.com

What can we know about the Miers nomination to the Supreme Court as it relates to the future of Roe v. Wade? The purpose of this post is to answer that question and to provide an easily accessible hook into a line of reasoning that I used myself in attempting to shed light on this mystery. What I have discovered is that it is possible to decipher the riddle of this Sphinx. The answer was a surprise as well as a shock--the implications are seismic.

The Case Against Harriet Miers was published shortly upon the announcement of the nomination and made the argument based on the principle of separation of powers for Miers' rejection. The very fact that she was nominated raised questions as it posed risks to the nation's Constitutional framework. I began to speculate on the political calculations inherent in the choice.

When addressed at all, Constitutional objections were not refuted by Miers' supporters and remain a valid reason for her outright rejection. If anything, this argument is stronger now than when it was first introduced. Unfortunately, due to the court's present unbridled reach, the majority of the electorate is justifiably fixated on likely political outcomes instead. The one political issue of fundamental consequence to the lasting relevance of the Constitution is abortion, specifically the case of Roe v. Wade that institutionalized on a federal level the rule that sovereignty of the person does not exist until sometime after birth-- an arbitrary and capricious rule. Would Miers correct this corruption of the Constitution? After examining the information that was disseminated by her proponents and accepted as a matter of faith by many, it became apparent that the answer was, "Not necessarily".

The intermediate conclusion that Miers was not necessarily a vote against Roe based either on her Constitutional bona fides or on her personal disposition was troubling. It was apparent at this point that the President was unlikely to have made such a reckless nomination without taking this factor into consideration. If there was insufficient evidence to conclude that Miers was a vote against Roe, was it possible the she might be a guaranteed vote for upholding Roe or was the most important Constitutional and political issue of our time for some reason not a consideration in her nomination?

We were being asked whether we trusted the President to nominate a pro-life justice. Certainly, Miers had a reputation of being "personally pro-life" but her supporters consistently backed off from translating this personal belief (later found to be based soley as the result of a religious conversion) into a political of judicial ideology--an unlikely incongruity for an adult with Miers biographic timeline. Could her associations shed light on this? At that point I came to a startling discovery. It wasn't that Miers herself had an odd position of being "personally pro-life" with unknown political and judicial view; those closest to Bush and Miers were also "personally pro-life", many evangelicals like Miers, but with a political and judicial ideology that specifically supported upholding Roe. The probabilities of such an coherent association of pro/unkown Roe GOP evangelicals was miniscule (about 1/1000). Was this a freak occurrence or by design? The answer to that question would depend on the person that brought these people together i.e. the President himself. What was his known position?

Certainly the President has nominated many appellate judges with judicial philosophies that would indicate that they would overturn Roe if they were in a position to do so. These appointments are not critical in respect to Roe as the confirmation proceedings made excruciatingly clear--appellate judges must uphold SCOTUS precedents. Thus, we cannot infer a definite position on Roe based on peripheral acts. The analysis revolves around one appointment and one appointment only: SCOTUS justices. The Roberts nomination was not much of a guide in this respect except that it was notable that Bush could not be sure of Roberts any better than anyone else. Roberts had no close association with the President. While Roberts seemed in every way to be in the mold of Rehnquist, he was also an avowed follower of the principle of stare decisis, a rule that would favor upholding Roe.

What has the President said on Roe? That also was indeterminate but did favor the hypothesis that Bush is "personally pro-life" but politically pro-Roe. However, there was posititive testimony from Laura Bush that would indicate that the President does make precisely this distinction.

What of the President's actions? Here there is conclusive proof that Bush is pro-Roe in the nomination of SCOTUS justices. Furthermore, through the disconnect on the Dobson solicitation, it is evident that this predisposition in nominating pro-Roe justices extends to Miers. Why else would the White House lie to Dobson about Miers being a first pick while providing him no guarantees on Miers? This is an extremely risky move and demonstrates sufficient mens rea for the conclusion that Bush has intentionally nominated a stealth pro-Roe justice.


UPDATE 17 OCT 2005 0030 EST:
Contradictory statements from Justice Hecht on whether Miers will overturn Roe

Referring to an October 2, 2005 conference call with Dobson, John Fund writes in Judgment Call:

What followed, according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"

"Absolutely," said Judge Kinkeade.

"I agree with that," said Justice Hecht. "I concur."

But from an Octber 5, 2005 article, Analysis: Once again, focus shifts to nominee's views on abortion, Michael McGough writes:

But Justice Hecht also said he couldn't predict how Ms. Miers might vote on a challenge to Roe v. Wade.

"If you're asking, 'Is she going vote to overrule Roe v. Wade, or Lawrence v. Texas [a 2003 decision striking down Texas' law against same-sex sodomy], I don't know that you can ask anyone that because you don't know until you are there."

Well, either Hecht can predict whether Miers will vote to overturn Roe or he cannot. He is certainly "somebody" and thus a member of the group defined by "anybody". If the notes are correct, then Hecht did indeed make a prediction on just this event.

It remains questionable whether Hecht's private prediction was accurate or even truthful; regardless, his statements are inconsistent. Why?

[GarySpFc]

There is not one point in your article which would indicate Miers' would be pro-choice. Your generalizations are nothing more than garbage. Unlike you, I checked with those who know her, and found out she is pro-life, and was saying all the way back in the late eighties the courts had gone too far in leaving the Founders intent. Furthermoe, I will put my pro-life credentials up against anyone on Free Republic, and certainly against John Fund. You on the other hand have shown nothing but venom against this pick since she was first announced.

[SteveH]

There is not one point in your article which would indicate Miers' would be pro-choice.

It's called inference. Check it out!

;-) ,p> Your generalizations are nothing more than garbage. Unlike you, I checked with those who know her, and found out she is pro-life, and was saying all the way back in the late eighties the courts had gone too far in leaving the Founders intent. Furthermoe, I will put my pro-life credentials up against anyone on Free Republic, and certainly against John Fund. You on the other hand have shown nothing but venom against this pick since she was first announced.

And I, too have insider information: General Geronimo in the 4th race... you can take it to the bank! My uncle's neighbor's friend knows someone who swears by this tip! You can bet your life savings!

;-)

[GarySpFc]

That is called "bearing false witness against your neighbor," but then you never pretended to be a Christian.

[publiusF27]

The one political issue of fundamental consequence to the lasting relevance of the Constitution is abortion

You know, we have laws and court cases about whether growing your own wheat is interstate commerce, whether being near a school with a gun is interstate commerce, whether rape is interstate commerce, whether growing your own cannabis plant is interstate commerce, whether designing and building your own machine gun is interstate commerce, whether partial birth abortion is interstate commerce, and whether assisted suicide is interstate commerce, among many, many others.

I completely agree that Roe is a Constitutional travesty, but heck, you can find liberal law professors who will say that.

I'm not saying it's unimportant, but it seems to me that the one issue which allows the feds to touch our lives in the most ways is the interpretation of the interstate commerce clause. It is offensive to Mr. Madison's promise in Federalist 45.

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.

I suspect that if they realized that we would one day have Supreme Court cases about whether homegrown cannabis plants or machine guns for personal consumption were interstate commerce, Mr. Madison and the gang might have just entertained a few more apprehensions about that new power.

[SteveH]

That is called "bearing false witness against your neighbor," but then you never pretended to be a Christian.

It's called humor, and religion has nothing to do with it

But some here seem to be in the habit of attacking the character of those who disagree with them-- and as I recall, Someone once said let he who is without sin cast the first stone.

[GarySpFc]

But some here seem to be in the habit of attacking the character of those who disagree with them-- and as I recall, Someone once said let he who is without sin cast the first stone.

It's called humor, and religion has nothing to do with it

You complain about those attacking character who disagree with them, but you attack Miers with innuendo to destroy her character and call it humor. Have you ever heard of hypocrisy? BTW, you really need to take a look at your interpretation of John 8:7.

[SteveH]

You complain about those attacking character who disagree with them, but you attack Miers with innuendo to destroy her character and call it humor. Have you ever heard of hypocrisy?

By accepting the nomination Miers put herself in the public eye and is now a public and political figure. Her record is fair game for public comment.

Many Miers defenders seem not only not to realize this, but view it as a personal insult and therefore feel free to criticize those who analyze Miers' and GWB's public record in an emotional, humorless and offensive manner. What some call inference others misconstrue with pejoratives such as "innuendo."

How about a four step program for Miers defenders.

1, get a sense of humor and learn how to use it.

2, separate one's emotions from one's rational evaluations of public policy.

3, stop taking criticism of a public figure personally.

4, refrain from attacking others who analyze and critique the actions of public figures. That's part of politics.