Patterico's Pontifications

10/25/2005

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:

AAAAAAAAAAUUUUUUUUUGGGGGGGGHHHHHHH!!!

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.

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

  1. Too funny (in a sad sort of way).

    Bemused Troll (8744bd)

  2. Thanks for getting this up so quickly–was just about to e-mail it to you. Can Hugh Hewitt possibly continue his support after this?

    It’s astonishing that this did not come out in even minimal vetting. The language used in this article suggests that she cannot have been serious in her commitment to a human life amendment, or was not serious in this public speech about a defining issue. I find it unbelievable and it should be the last nail, if more were needed, in this nomination’s coffin.

    Fr. Bill (a1cbc8)

  3. […] Also sprach: Patterico (whence I found this). […]

    The Trigger » Now that’s what I call a STEALTH nominee! (e72e64)

  4. I did read the whole thing, and it didn’t sound nearly as bad in context as the snippets you pulled out of context. For example, this makes it sound like she favors the idea of letting courts take over where legislators fear to act:

    “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.

    But it sounds a lot more reasonable when you read enough of the undowdified version to figure out she’s talking about a specific case, and mostly decrying

    “Allowing conditions to exist so long and get so bad that resort to the courts is the only answer has not served our state well,” she said. “Politicians who would cry ‘The courts made me do it’ or ‘I did not do that — the courts did’ should not be tolerated.”

    Sounds reasonable enough to me.

    As to the Lucy analogy, if Republican Presidents pull the football away “every time,” then how did a string of Republicans get the pro-Roe majority from the original 7-2 down to 5-4? And which Republican President caused Justices Kennedy and O’Connor to do a 180 on abortion after they had been confirmed?

    [I’d appreciate it if you’d retract the charge that I “dowdified” anything. I selected the lead paragraphs and a few others, and provided a link to the rest. “Dowdifying” is different. It’s doctoring a quote to change its obvious meaning. It suggests a lack of integrity on the part of the person doing the quoting. I did nothing of the sort and am insulted by the accusation. Bloggers should not carelessly throw around charges of “dowdification” based on a post’s not quoting an entire article. If you want to argue that other paragraphs help place the quotes in context, fine. I don’t really see how what you quoted adds much, but you’re welcome to make the argument. I merely ask that you not impugn my integrity. — Patterico]

    Xrlq (428dfd)

  5. I was earlier saying that the Miers nomination should be withdrawn, and Janice Rogers Brown should be nominated in her place.

    But since then, I’ve had a better idea.

    Bring Back Bork!!

    Aakash (515ab0)

  6. Harriet Miers Watch: The Speeches

    Supreme Court Nominee Harriet Miers meets with Sen. Russell Feingold, D-Wisc., at his office in the Hart Senate Office Building on Tuesday, Oct. 25, 2005 in Washington.
    The Washington Post has Clues about Miers’ views in 1990s speeches: report….

    FullosseousFlap's Dental Blog (baa0b4)

  7. Patterico:

    I agree with XRLQ (except for the “Dowdified” remark; “turd-picking” would be more accurate). Whenever you post these horrors, horrors! from Miers, I do click through and read the entire thing… and inevitably, I’m left wondering how you could possibly get that out of this.

    Miers is very clearly and unambiguously complaining about legislative bodies that refuse to address major social issues, preferring instead to do nothing, so the court must rule, and then crying, “oh, look what the court made me do!” — all the while thanking their lucky stars they didn’t have to go on record in a vote.

    And anent this quotation:

    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.”

    …can you please tell me what specifically she said, in context, and about what cases? Because I sure can’t tell from this WaPo article — and you’re so positive she’s saying that women should have abortion on demand that I reckon you must have a transcript of the entire speech.

    Could you please link me to it? I cannot possibly decide whether she’s a closet radical feminist or not without seeing that transcript.

    Thanks,

    Dafydd

    Dafydd (f8a7be)

  8. Miers is very clearly and unambiguously complaining about legislative bodies that refuse to address major social issues, preferring instead to do nothing, so the court must rule

    It’s the belief that that last step is even necessary that’s part of the problem…

    Christopher Cross (14b967)

  9. Cross is exactly right and Xrlq and Dafyyd are exactly wrong – it is not the place of the judiciary to decide to act because it disdapproves of the way the democratically elected branches have “address[ed] major social issues.”

    Sorry if xrlq thinks I dowdified Dafydd.

    eddie haskell (8fd1a1)

  10. Dafydd,

    See the update.

    Patterico (dbf6de)

  11. I don’t think there’s anything for me to retract. What I do see is a difference of opinion over what does or does not constitute a “dowdification.” Here’s what Wikipedia has to say on the topic:

    [Maureen] Dowd’s critics, especially James Taranto, have often accused her of editing quotes and adding ellipses so as to change the quotes’ intended meanings; the word “dowdify” has been coined to describe this alleged habit. The word has been used as parlance among conservative journalists and bloggers to describe any wilful misinterpretation of a quote.

    The first sentence is basically the definition I was working off of, namely, that you elided part of Miers’s quote, resulting in a partial quote that made it appear as though she was saying one thing (justifying judicial activism) when the full context made it clear she was saying something quite different (criticizing elected politicians who point to activist judges to excuse their own failings). Deliberately or no, your hand-picked quotation is every bit as misleading as Dowd’s infamous “they’re not a threat anymore” bit (quoting Bush as though he were talking about al-Qaeda, when in fact he was talking about the specific al-Qaeda operatives who were either dead or in custody) which spawned the term “dowdification.” So I think your quote definitely fits the definition expressed in the first sentence.

    You seem to be operating under the definition from the second sentence above, which I find both too broad and too narrow. Too broad, because by including any kind of misinterpretation of a quote, it misses the mechanics of how Dowd did in in a particular, infamous case, namely by elipsis. But it’s also too narrow in that it requires speculation about a writer’s intent. I don’t think for a minute that you opened up that article thinking “Oh, goody. There’s got to be something in here I can yank out of context to unjustifiably make Miers look bad, and even though I tell readers to RTWT, I know damned well most of them won’t! Bwahahahahahahahaha!” but then again, I don’t have any proof Dowd approached the infamous al-Qaeda quote that way, either. What I do suspect in your case is that you see almost everything through anti-Miers glasses – so much so that I frankly couldn’t fault Beldar and the other commenters who thought your lonely post praising her skills as a laywer must have been sarcastic (I figured out it wasn’t, but only after a couple of reads.) I have to think that at a subconscious level, at least, that when you read that article you were all too eager to find Lucy and a football, so you zeroed in on the reference to Lucille Ball, a separate reference to somebody’s foot, a third reference to some unrelated guy named Charlie, and a fourth reference to the color brown. In short, you read the article quickly, saw what you wanted to see, and strung it together in a way that resulted in a very warped picture.

    Does that constitute a dowdification? I think so, but if not – i.e., if the term really must be limited to cases where intentional dishonesty is proved or at least suspected – then it’s almost never appropriate to use the word against anyone – including Dowd. Maybe she intentionally doctored the infamous al-Qaeda quote to make it look as though Bush said what she knew damned well he hadn’t said, but then again, maybe not. For all you or I know, she may have made up her mind long beforehand that Bush is a bumbling fool, skimmed the transcript in much the way you appear to have skimmed this article, and saw what she wanted to see, through Bush-is-an-idiot-colored glasses.

    If you insist that the word “dowdification” be off-limits when discussing misleadingly elided quotations where the misleading is not suspected to be intentional, then I agree that by definition, my use of the word in the above comment was inappropriate. In that case, I’m leaving it to you to come up with a better term to use in its place – much as we have one word for stealing and another for conversion. Dafydd’s suggested term, “turd-picking” is tempting but inapposite, as that phrase implies the turd was there to begin with, and didn’t just appear to be a turd because it was removed from its environment and presented in a misleading context (e.g., digging up a small amount of mud, rolling it to make it look like a turd, showing it to somebody and saying “Hey, look what I found!”).

    Xrlq (e2795d)

  12. Is Hugh H. posting today? Again, just the idea that she feels if one branch does’nt act on social question, the court must “the more she thinks about it” Please, I don’t want her thinking about it.Just don’t act.it’s the people’s problem, not the court.

    Anyway, i don’t see anyway of explaining Miers’s thought processes other than to call them pneumbras……..Do we really want another pneumbra?

    alexandra morris (a071ac)

  13. that you elided part of Miers’s quote . . .

    The connotation of “elided” is that I skipped over part of the quote by using an ellipsis. I quoted an entire paragraph from the article. I just didn’t quote the whole article. And the portion I quoted makes the exact point you say I omitted: that she said the legislature abdicates its responsibility for solving issues.

    Patterico (99bb54)

  14. Btw, having read the speech, I have done another update. I do think that the “self-determination” language does not necessarily relate to abortion cases — though it might. But the way she has framed the abortion issue is the way an abortion-rights supporter would.

    Why is that? I suspect it’s because she was speaking to a women’s rights group. I strongly suspect that she would have framed the issue quite differently had she been addressing a pro-life group.

    Sigh.

    Patterico (99bb54)

  15. You may be right about that, but then again, I’ve known more than a few pro-lifers who argue passionately for the right of “self-determination,” without flinching on the question of whether that same right should extend to the unborn rather than to those who would kill them. Michael Williams, for example, appears to be an anti-abortion absolutist, but is also quick to argue against any law that prescribes any conduct that does not have a clear, identifiable, human victim – even to the point of arguing for the legalization of animal cruelty.

    Xrlq (5ffe06)

  16. after reading her whole speech, it’s worse than i thought. What about her comments of state school funding ? She also sounds like she’s endorsing redistribution of housing.and if those rich white folks don’t want them in their neighborhood, well, they’re racists..again, all the re-cycled feminist theory about glass ceilings…….
    In sum total, she’s saying if the legislative body does not act the way “liberals ” want them to act, we’ll I guess the courts will do it for them. I think the whole speech should be posted here………..

    alexandra morris (a071ac)

  17. Miers and judicial activism

    The Washington Post makes available the full text of a 1993 Harriet Miers speech that has the cyber elites in a bit of a frenzy today. Virginia Postrel, for instance, notes: For whatever reason, the president has picked a woman who not only has no cons…

    protein wisdom (c0db44)

  18. We undeniable still have a justice system that does not provide justice for all as provided by the Pledge of Allegiance. One justice for the rich, one justice for the poor. One justice sometimes for minorities, one for whites.

    The Pledge of Allegiance?

    Does she honestly believe that this is one of our Constitutional documents?

    rls (0516f0)

  19. Conservatives have every right to be disappointed in the nomination of Harriet Miers, not least because it (again) ducks an open fight with Senate Democrats over judicial activism. But there’s another way — a better way — to engage liberals in that debate. It’s described at http://www.fairamendment.us.

    A Fair Construction Amendment is an idea whose time hasn’t just come — it’s long overdue. It first occurred to me as I was reading Raoul Berger’s Government By Judiciary, more than 20 years ago. I thought: Instead of arguing with liberals about Berger’s thesis, why not establish it as law, whether liberals like it or not? We could devise a constitutional amendment, using the framers’ very own words, that instructs the Supreme Court to treat its task as the framers themselves said it should: as interpretation of an historical document, not husbandry of a “growing, evolving” one.

    A friend whose opinions I respect doubts the amendment would work, since activist justices would set out to subvert it, just as they’ve done with the rest of the Constitution. But if so, they’d have to do it in full sight of a people who had been alerted to the issue by the very process of the amendment’s adoption and ratification. And in that fight, the Left’s favorite weapon — “borking” judicial nominees — would be of no use. I for one would love to watch our liberal senators, activists and law professors explain to the public how Washington, Jefferson, Hamilton, Madison, Marshall, Story, Teddy Roosevelt and Cardozo are all “out of the mainstream.”

    Karl Spence (e66a2f)

  20. You’ll never get it passed. The public will be told that it supersedes Roe. Prognosis: dead on arrival.

    Patterico (7dcc46)

  21. It would be a lawyer’s dream amendment of litigation possibilities going on and on and on into historical fantasy and historical fact, which are, actually, pretty hard to separate. We re-do history regularly. Join us on the historical precedent of the day parade.

    Neil J. Lehto (77bed1)

  22. Miers’ 1993 Speech Draws Fire from Pro-Life Groups

    Pro-life organizations are expressing concern over statements made by Supreme Court nominee Harriet Miers in 1993 to the Executive Women of Dallas in 1993. During the speech, which was recently provided to the Senate Judiciary Committee, Miers gave sev…

    ProLifeBlogs (dbeed7)

  23. It would be instantly construed out of existence.

    But it reminds me of a quip attributed to Orrin Hatch in the early 1980s — that Congress should re-enact title VII of the Civil Rights Act of 1964 with one additional provision stating that “this time, we really mean it.”

    Attila (Pillage Idiot) (471b7c)

  24. […] Meirs really really really really doesn’t want to become the next Supreme Court Justice. […]

    WordPress Politics » Blog Archive » Wordpress Political Shorts (c75a6b)

  25. Patterico loses his sanity….

    ….and jumps off his ledge into the abyss of lunacy. I’ve been amazed …

    Media Lies (11ee8e)

  26. I see the lunacy has become contagious. No need to actually read the speech. We can simply skewer Miers based upon someone else’s opinion. The “echo chamber” has been perfected.

    Anyone who sees this speech as “pro” abortion can’t read English. And that includes you, Patterico. You owe Miers an apology.

    [Please: tone down the rhetoric and just make your argument. I read the whole speech, and so did Ed Morrissey and Paul Mirengoff, both of whom changed their positions on Miers as a result. How do you square the quoted language with opposition to abortion? It frames the argument exactly as pro-choicers would. — Patterico]

    antimedia (f29109)

  27. Antimedia,

    The problems with the speech are legion, and not limited to abortion.

    Christopher Cross (5dc409)

  28. Patterico’s ledge is getting more crowded

    257 blogs against, 58 neutral, 52 for (per TTLB. Hat tip: Michelle.) Paul Mirengoff:Miers should withdraw. If she doesn’t then, absent convincing evidence that her positions today are completely different from the liberal ones contained in the 1993 sp…

    Small Town Veteran (af7df9)

  29. I tried to trackback to your post, but trackbacks haven’t worked for me (on your blog) for a long time. Here’s the post for those who want to read it – http://www.antimedia.us/posts/1130387199.shtml

    I repeat my charge. Anyone who can get pro-abortion from that speech isn’t reading the speech, they’re cherrypicking. And I don’t care who it is – I remain completely unpersuaded by all the “big guns” that have come out, because not a one of them is using logic and reason.

    You ask me to tone down the rhetoric, yet you have belittled Miers, made fun of her and her writing, and so have many others. It’s appalling the way she’s been treated – called “mediocre” and “third-rate” (although I noticed you upgraded her to second rate last night) and so forth.

    Frankly I’m disgusted. There’s no logic or reason to the comlaints at all. If you want to reason together, fine. But calling this speech pro-abortion is ludicrous. It’s a complete distortion of what she said.

    And how do you reconcile her conclusion with your assertion?

    “Where science determines the facts, the law can effectively govern. However, when science cannot determine the facts and decisions vary based upon religious belief, then government should not act.”

    Does that sound like a judicial activist to you? Does that sound like someone who wants the government to be pro or anti-abortion?

    This has passed from ridiculous to insane.

    [I believe I always called her “second-rate” and not “third-rate.” Are you perhaps confusing me with someone else? — P]

    antimedia (f29109)

  30. My apologies. I see now that the trackback did work after all.

    [With WordPress, most trackbacks must be approved. I have always approved yours and always will, because I respect you, however vitriolic your comments get with respect to me. — Patterico]

    antimedia (f29109)

  31. You asked, “how do I square the quoted language”. Simply read the speech in its entirety. Miers is clearly saying that the legislatures (and she’s referring most particularly to the Texas legislature, which, if you were living in Texas and familiar with what’s going on down here, makes perfect sense) have abandoned their responsibilities and left them to the courts to decide. And, she points out, that is wrong. It is not the courts’ place to decide legislative issues, but the legislators like it because they can then blame the courts for what is wrong.

    When she talks about self-determination, she is reciting a litany of issues that have arisen over time, both nationally and in Texas. She then concludes that, for her, self-determination makes sense. Sense how? In the context of courts deciding issues that legislatures should decide. In other words, the people should be deciding these things, not the courts.

    Good grief. This isn’t rocket science, and if you weren’t already predisposed to find bogeymen behind every tree you’d see that.

    Christopher Cross, et. al. are wrong. Completely wrong. So are you. Dafydd is right. This isn’t even close. You guys have completely misread what Miers was saying in her speech. So completely that I’m forced to conclude you’ve lost all objectivity.

    On a side, but important (to me, anyway) note – many have nitpicked the grammar and spelling in this speech. Please show me where the text you’re reading is attributed to Miers’ hand as opposed to someone at the meeting transcribing the speech as she gives it. If you can’t, then you should apologize for criticizing her for something you can’t even prove she has done. (But that’s the least of the sins committed against Miers, who has been borked unmercifully by the right including Bork! without even being allowed to defend herself.)

    Conservatives should be ashamed of themselves.

    antimedia (f29109)

  32. someone please tell me what the hell is wrong with saying:

    “when science cannot determine the facts and decisions vary based upon religious belief, then government should not act.”

    I don’t like Harriet Miers for Supreme Court either, but that quote actually makes a lot of sense.

    Republicans need to detatch themselves from this religious nonesense.

    R (130968)

  33. […] And to that, Patterico, from his ledge, quoting from the WaPo, adds: 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.” […]

    Myopic Zeal :: Harriet Miers’ 1993 Speech to the Executive Women of Dallas :: October :: 2005 (739a0c)

  34. […] Meirs really really really really doesn’t want to become the next Supreme Court Justice. […]

    Half The Politics - Blog Archive » Political Shorts (4be27c)


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