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Would Miers have Voted to Overturn Roe?
CouNTeRPuNcH

Posted on 10/27/2005 2:42:37 PM PDT by counterpunch

Would Miers have Voted to Overturn Roe?

To determine this to the best of our ability, we must know her opinion on stare decisis, and her conditions for revisiting precedent.
Luckily, Miers provides us incite into just this question in her answer to #28 of the Senate Judiciary Committee questionnaire.
Here Miers tells us:

"Judicial activism" can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent. Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. 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.

We discover that Miers views the role of the judiciary as being quite constrained, showing deference where possible. She does not believe a judge can ignore precedent just because that judge disagrees with the result.

Miers does however list the specific conditions under which she would revisit court precedent. The precedent of Roe v. Wade was revisited in Planned Parenthood v. Casey and reaffirmed, based largely on stare decisis. Therefore, we can use Casey as a guide for how the Court views the precedent of Roe v. Wade. Let's see how Planned Parenthood v. Casey answers each enquiry to revisit precedent as laid out by Miers criteria point by point:

Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. 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,

Although Roe has engendered opposition, it has in no sense proven "unworkable," see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985), representing as it does a simple limitation beyond which a state law is unenforceable. While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today's decision, the required determinations fall within judicial competence.

whether developments in the law have undermined the precedent,

No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.

It will be recognized, of course, that Roe stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. Connecticut, 381 U.S. 479 (1965). See Roe, 410 U.S., at 152 -153. When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e.g., Carey v. Population Services International, 431 U.S. 678 (1977); Moore v. East Cleveland, 431 U.S. 494 (1977).

Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 278 (1990); cf., e.g., Riggins v. Nevada, 504 U.S. 127, 135 (1992); Washington v. Harper, 494 U.S. 210 (1990); see also, e.g., Rochin v. California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24 -30 (1905).

Finally, one could classify Roe as sui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the [505 U.S. 833, 858] concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 1983, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) (Akron I), and by a majority of five in 1986, see Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), expressing adherence to the constitutional ruling despite legislative efforts in some States to test its limits. More recently, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today, see id., at 518 (REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.); id., at 529 (O'CONNOR, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. See Webster, 492 U.S., at 521 (REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.); id., at 525-526 (O'CONNOR, J., concurring in part and concurring in judgment); id., at 537, 553 (BLACKMUN, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); id., at 561-563 (STEVENS, J., concurring in part and dissenting in part).

and whether legitimate reliance interests militate against overruling.

The inquiry into reliance counts the cost of a rule's repudiation as it would fall on those who have relied reasonably on the rule's continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, see Payne v. Tennessee, [505 U.S. 833, 856] supra, at 828, where advance planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of Roe.

While neither respondents nor their amici in so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine an argument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe's holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.

To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that, for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e.g., R. Petchesky, Abortion and Woman's Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed. [505 U.S. 833, 857]


So we can plainly see that each and every factor considered relevant by Miers to revisit Roe has already been specifically addressed and rejected by Casey.
Therefore, one can safely and confidently conclude that according to Miers, conditions are not ripe to revist and repeal Roe.
Miers was not, as some had claimed, a likely vote against Roe v. Wade.


TOPICS: Constitution/Conservatism; Editorial; Your Opinion/Questions
KEYWORDS: miers
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1 posted on 10/27/2005 2:42:38 PM PDT by counterpunch
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To: counterpunch

This is a vanity.


2 posted on 10/27/2005 2:43:27 PM PDT by sinkspur (Trust, but vilify.)
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To: counterpunch

No. Self determination. remember?


3 posted on 10/27/2005 2:43:33 PM PDT by conservativecorner
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To: counterpunch

She might of would of if she could of, but she won't!


4 posted on 10/27/2005 2:44:15 PM PDT by Revolting cat! ("In the end, nothing explains anything.")
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To: counterpunch
It's also beside the point. Miers is gone.

Now you're just showing off.

5 posted on 10/27/2005 2:44:19 PM PDT by sinkspur (Trust, but vilify.)
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To: counterpunch

We'll never know now.


6 posted on 10/27/2005 2:44:38 PM PDT by My2Cents (Dead people voting is the closest the Democrats come to believing in eternal life.)
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To: counterpunch

I seem to recall a case about beating a dead horse. Glad that Miers is out of the picture...but the focus now is whether Bush will nominate another lib (Gonzales) or a conservative (Brown, McConnell, Luttig et al.).


7 posted on 10/27/2005 2:44:38 PM PDT by peyton randolph (Warning! It is illegal to fatwah a camel in all 50 states)
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To: counterpunch
Who cares?

Miers who?

8 posted on 10/27/2005 2:44:50 PM PDT by Hank Rearden (Never allow anyone who could only get a government job attempt to tell you how to run your life.)
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To: sinkspur
Thanks for pointing out the obvious.
Its also designated as such already.
9 posted on 10/27/2005 2:44:56 PM PDT by counterpunch (- SCOTUS interruptus - withdraw Miers before she blows it -)
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To: sinkspur
Miers is gone. Now you're just showing off.

True.

This thread is very silly and just a touch vindictive.

10 posted on 10/27/2005 2:45:41 PM PDT by Petronski (The name "cyborg" to me means complete love and incredible fun. I'm filled with joy.)
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To: counterpunch
Would Miers have Voted to Overturn Roe?

Thankfully, we'll never need to find out.

11 posted on 10/27/2005 2:46:07 PM PDT by NittanyLion
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To: counterpunch
Its also designated as such already.

Nope. It's in "News/Activism."

12 posted on 10/27/2005 2:47:00 PM PDT by sinkspur (Trust, but vilify.)
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To: counterpunch

The reality is - what does it matter now.


13 posted on 10/27/2005 2:47:29 PM PDT by svcw
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To: peyton randolph
but the focus now is whether Bush will nominate another lib (Gonzales) or a conservative (Brown, McConnell, Luttig et al.).

He will not nominate Gonzales. If "executive privilege" over documents was a problem with Miers, it will be a problem-squared with Gonzales.

14 posted on 10/27/2005 2:48:26 PM PDT by sinkspur (Trust, but vilify.)
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To: counterpunch

Fortunately, her potential votes are no longer relevant.


15 posted on 10/27/2005 2:50:02 PM PDT by American Quilter (Why doesn't the government have to pay taxes on its income?)
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To: sinkspur

Who gives a flying frick how she would have voted! She was a OUIJI board pick and only the Ouiji board would have told her how to vote.


16 posted on 10/27/2005 2:50:59 PM PDT by samadams2000 (Nothing fills the void of a passing hurricane better than government)
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To: Petronski

Actually I wrote it last night, but it was too late to post it, so I thought I'd put it off until today. I had put enough research into it that I felt it was worth discussion even after her withdrawal, so I changed a few future tenses to past tense, and posted.

There was a lot of debate, and there was never any consensus on the issue of Miers v. Roe. A lot of her remaining supporters will try to say "yeah, but she would have overturned Roe!"

So I wanted to address that still, as I believe I have solid evidence that she never was willing to.



17 posted on 10/27/2005 2:51:14 PM PDT by counterpunch (SCOTUS interruptus: success.)
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To: counterpunch

At this point why care?


18 posted on 10/27/2005 2:51:37 PM PDT by steveo (Member: Fathers Against Rude Television)
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To: counterpunch

This is what is known as a moot point.


19 posted on 10/27/2005 2:52:57 PM PDT by DaGman
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To: counterpunch
Old news. Miers is gone, in case you missed the headline

CNN: HARRIET MIERS HAS WITHDRAWN!

20 posted on 10/27/2005 2:53:28 PM PDT by BigSkyFreeper ("Tucker Carlson could reveal himself as a castrated, lesbian, rodeo clown ...wouldn't surprise me")
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To: counterpunch

One can endlessly debate whether she'd have voted to overturn that decision, but there's little doubt that even if she did it wouldn't be for the correct reasons.

Roe is just a symptom.


21 posted on 10/27/2005 2:53:37 PM PDT by thoughtomator (Liberals: Get your human shields lined up quick or you'll miss the bombing!)
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To: DaGman
Hey, people are still discussing Bork's view of the 2nd amendment and such.
It is not moot when you consider this is something we cannot allow our selves to get deceived on with the next pick.
22 posted on 10/27/2005 2:54:58 PM PDT by counterpunch (SCOTUS interruptus: success.)
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To: Petronski
As it stands now, discussing Meirs is akin to Quixote tilting at windmills.


If you want a Google GMail account, FReepmail me.

23 posted on 10/27/2005 2:55:16 PM PDT by rdb3 (Have you ever stopped to think, but forgot to start again?)
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To: counterpunch

Bit of a moot point, eh?


24 posted on 10/27/2005 2:55:34 PM PDT by xcamel (No more RINOS - Not Now, Not Ever Again.)
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To: svcw
The reality is - what does it matter now.

The pro-Miers bloggers are already saying, "If X bad ruling is made, it's the anti-Miers side's fault, because Miers MAY have voted the right way on X." So, it continues to be relevant to provide evidence to the contrary.
25 posted on 10/27/2005 2:55:36 PM PDT by Rastus
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To: Rastus

Thank you for getting it.


26 posted on 10/27/2005 2:56:26 PM PDT by counterpunch (SCOTUS interruptus: success.)
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To: counterpunch
irrelevant now.
27 posted on 10/27/2005 2:57:42 PM PDT by FFIGHTER (Character Matters!)
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To: rdb3

Ironic though, that her name's a homophone for "mire." Her nomination got mired (Miered) down and never gained momentum.


It's like an ice cream man named Cone.


28 posted on 10/27/2005 2:59:05 PM PDT by Petronski (The name "cyborg" to me means complete love and incredible fun. I'm filled with joy.)
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To: counterpunch

The fact she was childless bothered me a little on the Roe issue...


29 posted on 10/27/2005 2:59:10 PM PDT by tubebender (Chris Matthews suffers from "IRRATIONAL EXUBERANCE"...)
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To: counterpunch

Harriet Miers is a fine woman and public servant. Let's leave her alone now.


30 posted on 10/27/2005 2:59:41 PM PDT by Buck W. (Yesterday's Intelligentsia are today's Irrelevantsia.)
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To: counterpunch

Is the pope Catholic?


31 posted on 10/27/2005 3:00:04 PM PDT by When do we get liberated? ((God save us from the whining, useless, irrelevent left...))
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To: counterpunch
A lot of her remaining supporters will try to say "yeah, but she would have overturned Roe!"

That dog won't hunt. The 1993 speech trumps current speculation.

32 posted on 10/27/2005 3:00:16 PM PDT by Petronski (The name "cyborg" to me means complete love and incredible fun. I'm filled with joy.)
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To: Petronski

Or a Library Cop named Lt. Bookman.


33 posted on 10/27/2005 3:01:25 PM PDT by counterpunch (SCOTUS interruptus: success.)
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To: counterpunch

LOL

You got it.


34 posted on 10/27/2005 3:02:01 PM PDT by Petronski (The name "cyborg" to me means complete love and incredible fun. I'm filled with joy.)
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To: Petronski

That one's from Seinfeld.


35 posted on 10/27/2005 3:02:43 PM PDT by counterpunch (SCOTUS interruptus: success.)
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To: counterpunch
I know. ;O)
36 posted on 10/27/2005 3:03:47 PM PDT by Petronski (The name "cyborg" to me means complete love and incredible fun. I'm filled with joy.)
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To: Petronski
It's like an ice cream man named Cone.

If Cone's first name is Waffle, he and I could be bestest friends!


If you want a Google GMail account, FReepmail me.

37 posted on 10/27/2005 3:03:58 PM PDT by rdb3 (Have you ever stopped to think, but forgot to start again?)
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To: rdb3

And if his first name is Pine, probably not.


38 posted on 10/27/2005 3:05:09 PM PDT by Petronski (The name "cyborg" to me means complete love and incredible fun. I'm filled with joy.)
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To: counterpunch
The answer:


39 posted on 10/27/2005 3:07:31 PM PDT by Momaw Nadon ("...with the ultimate goal of ending tyranny in our world.")
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To: My2Cents
We'll never know now.

Thank God.

40 posted on 10/27/2005 3:07:38 PM PDT by Cicero (Marcus Tullius)
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To: Petronski
And if his first name is Pine, probably not.

I see we're both quick to turn a phrase today. Roger that!


If you want a Google GMail account, FReepmail me.

41 posted on 10/27/2005 3:07:38 PM PDT by rdb3 (Does this wheelchair make me look fat?)
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To: sinkspur
He will not nominate Gonzales. If "executive privilege" over documents was a problem with Miers, it will be a problem-squared with Gonzales.

That's right Gonzales is out. The politics of the situation however demands another woman. Which might be a very good thing. I want a conservative originalist on the court and I want one of the fairer sex. Edith Jones or Janice Rogers Brown will do quite nicely.

Moreover, the resistance met by Bush on Harriet Miers by the senate should lead him to conclude that the republican senators have been grown a pair.

That may or may not be true but nobody could blame Bush for assuming they have. Personally I have my doubts but what the hey, nothing ventured nothing gained.

42 posted on 10/27/2005 3:13:48 PM PDT by jwalsh07
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To: counterpunch
Your post is well researched, carefully presented, throughly documented, and about as useful as yesterdays toiletpaper.

She is history!

43 posted on 10/27/2005 3:17:51 PM PDT by det dweller too
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To: counterpunch

Roe v. Wade...let's not be a one trick pony here people. I want a strict constitutionalist. The abortion issue, even if struck down federally, could be approved by the individual states. I really get tired of our side v. their side on one single issue. While we worry about Roe here came McCain/Finegold, and the emminent domain case. We have better things to do than get all hot and bothered about ONE thing. We should keep our eye on the prize, a strict constitutionalist that would assure our liberty.


44 posted on 10/27/2005 3:18:19 PM PDT by timydnuc (I'll die on my feet before I'll live on my knees.)
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To: counterpunch

Miers never heard of Roe. Only Democrats have heard of Roe.


45 posted on 10/27/2005 3:21:59 PM PDT by ex-snook (Vote gridlock for the most conservative government)
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To: counterpunch

What's the point?


46 posted on 10/27/2005 3:23:26 PM PDT by silent_jonny (How do I spell relief? W-I-T-H-D-R-A-W-N But God bless you anyway, Harriet.)
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To: tubebender

I am 39 years old, never married, no children and am saving myself for my husband when I eventually do marry one day. I am 100% pro-life and would overturn Roe V. Wade in a hot second if given a chance. Heck, there are plenty of pro-abortion women out there who have children. That being said, I had plenty of reservations about Miers, but her not having children was not one of my concerns.


47 posted on 10/27/2005 3:26:11 PM PDT by fox0566
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To: counterpunch

Would Miers have Voted to Overturn Roe? YES

I agree, believe me, I think that Miers would have been the only evangelical on the court. I've been supportive of the Miers nomination because I support President Bush in this time of war and I think it's time for a prolife conservative evangelical on the Supreme Court. However, I was very concern about what she said about abortion in the 1993 speech, and if it were so, it was a grievous fault, and I will not support someone who is pro-choice or pro-abortion.
Some good conservative societies, they are all honorable groups, they consciously or unconsciously oppose her because they don't trust her being an evangelical. And they are great conservative people, so it is now important to note the relative proportion of membership in various religious group these conservative societies are and who is their choice. One religious conservative group or men can not be overly proportion on the court. I support President Bush and think he is great! President Bush cares and has done so much for us.


48 posted on 10/27/2005 3:36:03 PM PDT by FreeRep
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To: counterpunch
Hey, people are still discussing Bork's view of the 2nd amendment and such.
It is not moot when you consider this is something we cannot allow our selves to get deceived on with the next pick.

Early withdrawal anxiety?  :-)

49 posted on 10/27/2005 3:40:44 PM PDT by Racehorse (Where your treasure is, there will your heart be also.)
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To: FreeRep
I think it's time for a prolife conservative evangelical on the Supreme Court.
[...]
they consciously or unconsciously oppose her because they don't trust her being an evangelical.
Maybe people distrust an evangelical on the Court for the same reason you want one -- because they fear, just as you hope, that her religion would have shaded her view of the law.

 
50 posted on 10/27/2005 3:40:57 PM PDT by counterpunch (SCOTUS interruptus: success.)
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