Patterico's Pontifications


Postcards from the Ledge: Miers Speeches Indicate a View of Abortion as an Issue of “Self-Determination”

Filed under: Abortion,Judiciary — Patterico @ 10:15 pm

[“Postcards from the Ledge” is a semi-regular feature of this site, detailing revelations about Harriet Miers that have driven your gentle host out onto the window ledge.]

From the Washington Post (h/t this commenter):

Supreme Court nominee Harriet Miers said in a speech more than a decade ago that “self-determination” should guide decisions about abortion and school prayer and that in cases where scientific facts are disputed and religious beliefs vary, “government should not act.”

In a 1993 speech to a Dallas women’s group, Miers talked about abortion, the separation of church and state, and how the issues play out in the legal system. “The underlying theme in most of these cases is the insistence of more self-determination,” she said. “And the more I think about these issues, the more self-determination makes sense.”

It gets worse:

“The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s [sic] right to decide for herself whether she will have an abortion,” Miers said.

Those seeking to resolve such disputes would do well to remember that “we gave up” a long time ago on “legislating religion or morality,” she said. And “when science cannot determine the facts and decisions vary based upon religious belief, then government should not act.”

Does she still sound like a stealth anti-Roe candidate to you??

She also had an interesting view on judicial activism — i.e., sometimes we need it:

“My basic message here is that when you hear the courts blamed for activism or intrusion where they do not belong, stop and examine what the elected leadership has done to solve the problem at issue,” she said.

Read the whole thing, and weep.

A colleague at work recently analogized social and judicial conservatives to Charlie Brown, and Republican presidents to Lucy. Every time, Charlie Brown thinks Lucy is going to let him kick the football. Just like, every time, conservatives think that Republican presidents are going to allow them to make progress on issues like Roe v. Wade.

And every time, Lucy pulls the football away.

Reading this latest Washington Post article, I’d just like to say on behalf of judicial conservatives:


UPDATE: Here is a link to the speech itself. The link is via Orin Kerr at Volokh, who notes this revealing passage:

What else do we hear a lot today about the Courts. The law and religion. A preacher in Dallas is challenged by suits charging that he is ripping off the helpless and defrauding them with prayer cloths, etc. Abortion clinic protesters have become synonymous with terrorists and the courts have been the refuge for the besieged. The Branch Davidian compound became a sight for speculation about legal responsibilities and legal rights. The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s right to decide for herself whether she will have an abortion. Questions about what can be taught or done in public places or public schools are presented frequently to the courts.

The law and religion make for an interesting mixture but the mixture tends to evoke the strongest of emotions. The underlying theme in most of these cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes the most sense. Legislating religion or morality we gave up on a long time ago. Remembering that fact appears to offer the most effective solutions to these problems once the easier cases are disposed of.

Kerr also notes the observation of a reader at Bench Memos that the Court had recently decided Casey.

UPDATE x2: I have now had a chance to read the original speech, and it is instructive. First, I note that the thrust of what Miers was trying to say about the interplay between the courts and the legislature was that the legislature has abdicated its responsibility. (Incidentally, I think that message comes through in the quote I selected to include in the post, despite the arguments of a couple of commenters here that I somehow ripped that quote out of context — an accusation that I disagree with.) What continues to disturb me is the underlying assumption that it’s okay for the courts to step in when the legislature fails to fix an issue. However, I’m willing to remain open-minded on that concern, since court action is indeed sometimes necessitated by legislative inaction.

Second, I think it is less than crystal clear from the speech (which is badly worded and confusing) that the “self-determination” comment relates to abortion. As the quote I provide above shows, it comes in the context of discussing cases about “the law and religion” — but interestingly, the previous paragraph seems to indicate that Miers sees abortion cases as cases about law and religion. So we can’t say for sure that Miers believes that “self-determination” is the way to go on abortion cases, as the Post suggested.

Does that assuage the concerns this speech raises about Miers and abortion? No, it doesn’t. The reason is a quote I bolded above: “The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s right to decide for herself whether she will have an abortion.” That is the way an abortion-rights supporter frames the issue, folks. There it is, in context. There is no denying that this is an incredibly demoralizing revelation for anyone who believes that Roe and Casey must be overruled.

Pejman Opposes Miers Nomination

Filed under: General,Judiciary — Patterico @ 9:45 pm

Big news: Pejman Yousefzadeh has officially decided to oppose the Miers nomination.

For the first time, I actually feel some momentum behind this movement!

UPDATE: Less significant, but also encouraging: many Senators are also expressing doubts about Miers.

(Yes, I’m kidding with the “less significant” line. Sheesh. Leave me alone and let Pej have his moment.)

Answering Hugh Hewitt’s Questions

Filed under: Constitutional Law,Judiciary — Patterico @ 6:13 pm

Hugh Hewitt has propounded some questions to the anti-Miers crowd. Here are my answers:

Question: Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?

Answer: It depends on what you mean by “loyalty.” If “loyalty” requires me to remain silent while the President crams a second-rate Supreme Court nominee down my throat, then the answer is “no.” No President merits that kind of “loyalty” from me.

Question: Do Harriett Miers’ many accomplishments count for nothing?

Answer: Of course they count for something. But that something is not an entitlement to a spot on the Supreme Court. If Bush wanted to nominate Miers to a Circuit Court of Appeals, I wouldn’t have a violent objection to that.

Question: Does Harriett Miers strike the commentator as a dedicated public servant?

Answer: Yes.

Question: Why not wait for the hearings to at least begin?

Answer: Because I am exceedingly unlikely to learn anything in those hearings that would assuage my concerns, and I think it would be better for all concerned if the nomination were withdrawn before we got to that point.

Question: How important is it that Roe v. Wade/Casey be reversed?

Answer: Critical.

Question: Which five precedents does the commentator think are in most pressing need of reversal?

Answer: Off the top of my head:

1) Casey/Roe
2) Grutter (affirmative action)
3) Miranda
4) Roper v. Simmons (banning execution of juveniles)
5) Atkins v. Virginia (banning execution of the retarded)

Those last two are decisions whose reasoning amounts to a wholly unwarranted judicial grab of power. I’m not a big fan of Kelo or Raich, either. [UPDATE: Or Lawrence.] [UPDATE x2: And McConnell! How could I forget McConnell?!] I’m sure there are others.

Question: Does the commentator agree with George Will’s assertion of Justice Lewis Powell as the “embodiment of mainstream conservative jurisprudence?”

Answer: Nope. Powell was a disaster. Since you mention it, so was Potter Stewart, to whom you, Hugh Hewitt, have compared Harriet Miers. Stewart concurred in Roe, and concurred in Furman v. Georgia, an opinion striking down all death penalty laws in the country on bogus grounds. He lacked consistent principles, preferring instead an ad hoc theory of judging, pursuant to which he “knew it when he saw it.”

Question: Is a neo-Borking underway which will discredit the conservative cause’s defense of its future nominees against similar, future attacks from the left?

Answer: No.

Question: What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?

Answer: It depends on the replacement nominee. If it is a Luttig or a McConnell, the party will breathe a universal sigh of relief. Republicans will be unified and energized. Confirmation of such a nominee (while made more difficult by the Miers nomination) would show America that the Republican party values quality over cronyism.

If Miers is confirmed (as I expect she will be), the rift will take years to repair.

UPDATE: Jeff G. answers the questions as well, and reminds us of one of the Court’s worst decisions, the McConnell decision upholding an unconstitutional campaign finance reform law. How could I have forgotten that one??

Hugh Hewitt Praises Reagan’s Decision to Nominate O’Connor

Filed under: Judiciary — Patterico @ 6:29 am

Hugh Hewitt is letting his vacation-inspired fatigue show with this argument:

Some anti-Miers writers have argued that it is always wrong to take gender into account when a president nominates for SCOTUS. To which I reply: That’s not what Ronald Reagan thought.

Come on, Hugh! You’re defending the O’Connor nomination because Ronald Reagan made it? O’Connor, who gave us Casey and the continuation of Roe? Who gave us Grutter, and who approved an unconstitutional campaign finance reform law?

That doesn’t bode well for your argument that we should defend the Harriet Miers nomination because President Bush made it.

Paul at Power Line is more polite:

But Reagan’s decision to take gender into account resulted in the nomination of Sandra Day O’Connor when he might have done so much better. And if Ronald Reagan could mess up a nomination due in part to gender discrimination, so too can President Bush.


UPDATE: Paul Zummo at Don’ does a far more thorough takedown of Hewitt’s post. (Via Professor Bainbridge.)

UPDATE x2 AND BUMP: Further down the post, Hugh reassures us with this lovely possibility:

There might be another vacancy in the summer of 2006, when a Luttig or a McConnell or, yes, a Gonzales would be nominated and the ensuing debate would frame the vote in November.

See? If we sit still for Miers, we’ll get her — and maybe Alberto Gonzales down the road, too! A Supreme Court with both of them! What could be better? And Hugh (and Beldar) will be telling us to support his nomination, too.

I’m bumping this post to the top, so that everybody can see what a successful Miers nomination means: we have to sit still for absolutely anything the President throws at us in the future. Anything.

Can You Remember Back That Far?

Filed under: Judiciary — Patterico @ 6:12 am

Hugh Hewitt says:

The modern, large law firm is such a very different beast than it was when the last big firm partner joined the court –a date and name for which I can’t even figure out.

Quiz: who was the last Justice who had been a partner at a large law firm, and when did that partner join the Court? Answers below the fold.


Bush Names New Fed Chairman

Filed under: Humor,Judiciary — Patterico @ 12:01 am

President Bush has named a new Fed Chairman to replace Alan Greenspan. The nominee, Ben Bernanke, has no experience in macroeconomics, but has been been President Bush’s personal banker for the past decade:

“Ben’s plenty smart,” Bush said in a hastily called press conference. “Plus, he’s a good Christian.” Bernanke was seen whispering in Bush’s ear, after which Bush said: “I mean, Jew. Whatever.”

Bernanke appears headed for quick confirmation by a spineless U.S. Senate.


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