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W James Antle

Constitutionalism: The Real Conservative Litmus Test for Harriet Miers
By W. James Antle III
Oct 21, 2005 - 8:55:00 PM

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Senate Judiciary Committee members may have described Supreme Court nominee Harriet Miers’ questionnaire responses as “incomplete to insulting.” But one item from the background information released to the committee was revealing: the disclosure that she favored a constitutional amendment that would ban abortion during her 1989 campaign for Dallas City Council.

Given that she took this position on a candidates’ survey for Texans United for Life, perhaps it was an example of Miers telling people on both sides of the issue what they wanted to hear. But the combination of her survey responses, pro-life financial contributions and stand against an American Bar Association endorsement of Roe v. Wade—along with a fair amount of anecdotal evidence—strongly suggests that Miers is pro-life.

So does this mean that conservatives should support her nomination? Only if you believe that a Supreme Court justice is a kind of super-legislator whose chief duty is to vote the right way on public policy issues—that is to say, if you repudiate everything conservatives have been saying about the role of the judiciary for at least the last 40 years.

It would be a major concession to the imperial judiciary if, as Ann Coulter wrote, “even conservatives just hope like the dickens the next king is a good one.”

Miers’ overall judicial philosophy still matters more than certainty about her personal abortion views. That she believes abortion is wrong or even that it should be illegal tells us nothing about whether she would be bound by stare decisis on Roe.

We who are pro-life abhor the policy of abortion of demand Roe imposed on our country. But the 1973 decision has also long been recognized as a good test of how an aspiring jurist sees the role of the courts. More than any other Supreme Court ruling, Roe is symbolic of judicial arrogance, black-robed social engineering and a determination to evade the original public understanding of the Constitution.

A purely results-based opposition to Roe threatens to undermine the coalition that supports constitutionalist judges. As John Tabin observed in the online edition of The American Spectator, “When judicial conservatives can no longer be sure that an anti-Roe judge will be fairly strong across the board, they will begin to part ways with their social conservative allies.”

Paradoxically, such a stance is also less likely to build an anti-Roe majority on the Supreme Court. Antonin Scalia and Clarence Thomas would overturn Roe, but where Chief Justice John Roberts stands is unclear. But Roberts is unlikely to vote for reversal on pro-life policy grounds alone.

Miers and the White House are also in a precarious position in the Senate. Democrats—and some pro-choice Republicans like Judiciary Committee Chairman Arlen Specter—are likely to push Miers to either disavow her 1989 abortion views or distinguish them from how she would rule as a justice. But anything she says that might reassure these senators has the potential to erode her already tenuous support from Senate conservatives. The hearings could become all abortion, all the time.

Miers’ meeting with Sen. Specter offers a preview. After their courtesy call, Specter told the press that Miers agreed with the penumbral privacy right that was the basis of the Supreme Court’s Griswold v. Connecticut decision. This could be construed as a hint of her views on privacy precedents and Roe. When the statement reached the White House, Miers issued a swift retraction, attributing Specter’s statement to a “misunderstanding.” But she can’t have such misunderstandings in full committee.

The Bush administration strategy that resulted in a 78 to 22 confirmation for Roberts has been abandoned and the early results don’t look good.

What can be done? The White House must stop trying to simultaneously argue that a.) Miers won’t legislate from the bench and b.) she will legislate from the bench in a manner that will please social conservatives. If their nominee is a constitutionalist, she must clearly and emphatically articulate a judicial philosophy consistent with that label.

If Miers is not a constitutionalist, then there can be no mistaking her for a nominee in the mold of Clarence Thomas and Antonin Scalia. At this crucial juncture in the Court’s history, an appointee outside this mold does not merit conservative support. It doesn’t suffice to know where Miers stood on abortion in 1989. We must know where she stands on the Constitution and the role of the courts today.


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