Will Miers Vote to Overturn Roe? It’s Anybody’s Guess
In my view, too much is being made of this report that two friends of Harriet Miers said they thought she would vote to overturn Roe if she had the chance:
On Oct. 3, the day the Miers nomination was announced, Mr. Dobson and other religious conservatives held a conference call to discuss the nomination. . . . Also on the call were Justice Nathan Hecht of the Texas Supreme Court and Judge Ed Kinkeade, a Dallas-based federal trial judge.
. . . .
[A]n 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.”
So what? It’s a guess. And people have been wrong about such guesses in the past.
I agree with Beldar:
Neither man claims to have based his (at-best educated) guess on anything in particular that Ms. Miers has promised, or written, or said. Indeed, Justice Hecht has repeatedly denied having heard Ms. Miers make any promises or assertions or statements about how she might rule on abortion issues if she’s confirmed, or even what she thinks of Roe as a precedent.
Paul Deignan notes this quote from Justice Hecht, which sounds similar to things I have heard him say in interviews:
“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.”
The bottom line is that we have no idea what she will actually do when she gets to the Court, because we don’t really have a clue about her judicial philosophy. Confident predictions that Anthony Kennedy and Sandra Day O’Connor would vote to overturn Roe based on their perceived personal beliefs turned out to be gravely misplaced. I suspect the same may be true for Miers.
We do have the President himself as the guarantor of Miers’ judicial philosophy (and the person who seemed to go out of his way to make this peculiar pick).
The president, as it so happens is known to be pro-Roe with a fair degree of certainty (by word and deed as well as the testimony of Laura). Furthermore, in obtaining Dobson’s endorsement, there was some misrepresentation–that betrays a guilty mind. So, this implies that Miers is a pro-Roe vote. That was after all the major criteria apparently for Dobson for which the misrepresentation was designed to obscure.
There are more direct methods as well in examining Miers lack of judicial structure together with a predisposition to support pro-choice (Hutchinson) causes and candidates that are indicative of a “personally pro-life/pro-Roe” philosophy consistent with that of the President and First Lady. Her close associations with Rice and Veneman also support the conclusion. (Are there even any anti-Roe women in Bush’s inner circle?)
So I would place my bet at 80-95% certainty that Bush and Miers are pro-Roe.
Paul Deignan (c95d69) — 10/17/2005 @ 7:36 amHere’s another question.
If you are the president and you want to put up a candidate that will need private assurances of her position on Roe, why don’t you give those assurances yourself? After all, you have known the nominee closely for many years and claim to know her judicial philosophy.
Why not just tell Dobson yourself that Miers does not see a privavy right, or believes sovereignty begins at conception, or whatever it is that you knew that assured you that she was a “strict constructionalist”.
Instead, Bush uses front men with “credible deniability”. That is more than fishy to me.
Paul Deignan (c95d69) — 10/17/2005 @ 7:47 amBTW, on Hecht, note that he says it is impossible to make a prediction, but just a day before (as close as I can tell) he made exactly that prediction according to the notes.
Is his memory that foggy or is he not telling the truth? Why go to such lengths of jeapordizing your integrity as a justice on a state supreme court?
Why the private meetings at all?
Paul Deignan (c95d69) — 10/17/2005 @ 7:52 amAFAIK the confident predictions about Kennedy and O’Connor were accurate representations of their views at the time they were confirmed, i.e., O’Connor joined the court as a vocal critic of Roe, and Kennedy remained anti-Roe until months after the oral arguments in Casey. If I’m right, I don’t know how anyone could have predicted better, any more than anyone in the 1960s could have predicted that Cat Stevens would convert to Islam, but [fill in the name of your favorite singer from the era, but not Cat Stevens here] wouldn’t.
Xrlq (428dfd) — 10/17/2005 @ 8:40 amJohn Roberts’ answers to questions during his confirmation hearings gave us a strong indication of his judicial philosophy, even though he properly declined to suggest how he might rule on a particular issue. He can be described as evasive only by someone whose expectations are driven by a desire to see the Court establish policy, rather than interpret law. Taking his answers at face value (and we have every reason to do so), they suggest very strongly that he will be a judicial conservative, which should not be confused with “political conservative” or just plain “conservative.” In particular, Roberts made at least one statement to the effect that a judge should first look within the constitution itself for guidance on how particular language should be construed (Clam, for what it’s worth, I think he used words suggesting “framers’ intent, but let’s not hold that against him, ok?). He also spoke of humility from the bench — I’m confident that Roberts didn’t mean that he doubts his own qualifications, but that he understands that the Court, by exercising judicial review, can effectively remove issues from further consideration by other branches of government or the states. This is not the sort of activist originalism that some opponents of Roe v. Wade were hoping for, but it doesn’t mean that Roberts won’t vote to reverse Roe. For what it’s worth, it may very well suggest that he will vote against Roe, if one considers Roe to exemplify the opposite of the judicial humility Roberts spoke of. The point is that we can make logical predictions of how Roberts might, supporting those predictions with reasons having nothing to do with his personal views on abortion.
Miers is reportedly taking a crash course in constitutional law. I wonder if will she develop a judicial philosophy or, if she has one now, if she’ll become more confident in it. One possibility is that judicial philosophy isn’t really her focus; rather, her focus is the result — getting confirmed, because that’s what her client, the President, wants. When we hear her doing her best John Roberts imitation in her confirmation hearings, should we take her at face value, or should we worry that she hasn’t fully stepped outside her role as the President’s advocate, putting the best case forward for confirming the nominee of his choice, all the more vigorously because it is her choice as well? Even if Miers says all the right things, we will have no idea whether she has just explained her judicial philosophy or whether she has successfully followed the script. Go with whatever odds Vegas is giving for a Miers vote on reversing Roe, because you won’t get better info anywhere else.
TNugent (58efde) — 10/17/2005 @ 9:45 amI think I just got an e-mail on that:
DEVELOP JUDICIAL PHILOSOPHY AND FIND GAINFUL EMPLOYMENT IN ONLY 5 WEEKS!!!!!!!
I thought it was spam so I deleted it. Oooops! My bad.
Paul Deignan (c95d69) — 10/17/2005 @ 10:29 am[…] And Paul Deignan looks at the chances Miers will vote to sustain Roe. See also Patterico on the same topic. […]
PrestoPundit » Blog Archive » CHURCH GOING, (d881ce) — 10/17/2005 @ 10:35 am“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.”
HEM, 1992
http://www.newsday.com/news/nationworld/nation/ny-usmier1018,0,1122448.story?coll=ny-nation-big-pix
Andrew (5cb8c7) — 10/18/2005 @ 12:17 am