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Miers is Not Pro-Choice

Jill

No surprise here.

As a candidate for a seat on the Dallas City Council, Ms. Miers answered “yes” to the following question: “If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature?”

Ms. Miers answered “yes” to all the organization’s questions, including whether she would oppose the use of public money for abortion and whether she would use her influence to keep “pro-abortion” people off city health boards and commissions.

Ms. Miers also said she would refuse the endorsement of any organization that supported “abortion on demand,” would use her influence as an elected official “to promote the pro-life cause,” and would participate “in pro-life rallies and special events.”

One glimmer of hope is that she’s said she supports equal civil rights for gays and lesbians — except that she did not support repealing a local ban on sodomy. So she supports gay rights, as long as they don’t have sex (a type of sex that, notably, is perfectly legal for opposite-sex couples to have). So much for “equality.”

25 thoughts on Miers is Not Pro-Choice

  1. Of course, you could always try a 1989 Miers vs. 2005 Miers Catch-22 question from the Judiciary Committee:

    “If, as a politician, you supported a Constitutional amendment to ban abortion, then by implication the current Constitution (without such an amendment) would necessarily allow abortion rights… is that correct?”

    I just know this is going to get shot down, but I’m not sure how yet.

  2. As I’ve pointed out in the past, Miers’ political position on abortion will not necessarily tell us how she will rule on Roe. There are many pro-life judges who will not rule against Roe (see Anthony Kennedy) and there are also pro-choice judicial originalists who believe it was wrongly decided. Bottom line: we still don’t know anything about her judicial philosophy.

  5. Did anyone really think Bush was going to appoint a pro-choice justice?

    Did anyone think Nixon, Ford, Reagan, or Bush I would appoint pro-choice justices, either? I’m not saying Miers will necessarily vote like Blackmun, Stevens, O’Connor, Kennedy, or Souter- just pointing out that GOP presidents don’t have a great track record of appointing SCOTUS justices that reflect the opinions of the GOP base, at least on abortion.

  7. Jon C. – IIRC, Ford was actually pro-choice (the last pro-choice Republican presidential candidate) and in Nixon’s era (pre-Roe), abortion was largely illegal by state laws. Actually, wasn’t it Burger or another Nixon appointee who wrote the opinion in US v. Nixon?
    I wasn’t even born yet or I was a very small child for the other confirmations, but I’m pretty sure that Kennedy was nominated in lieu of the extremely controversial Bork and he’s pretty out of touch with the modern right-wing groups because of Terri Schiavo and Lawrence v. TX. And Souter’s name has become like a curse word for people who want conservative courts, so I’m pretty sure anyone like him gets screened out, after all Bush promised to nominate conservative judges like Thomas or Scalia.

  8. As for her judicial philosophy, we can’t tell. So, really, all we have to go on is what she’s said in the past. And what she has to say doesn’t sound good to the left, and it doesn’t sound good to the right either.

    So, anyone want to start a countdown? How long it will take until Harriet Miers gets borked?

  10. Kate, your recollection is correct. Bork’s failed nomination was followed by Douglas Ginsburg, who withdrew following allegations of marijuana use, then Kennedy. In the Nixon admin., Hainsworth failed because he was a racist, then Carswell failed because he was a moron, giving us Blackmun, the formen counsel to the Mayo clinic, who authored Roe.

    The underlying question is the one that dooms Miers (I think she will not be confirmed). The Right supported Reagan in 1980 and Bush I in 1988 with the understanding that they would appoint judges who would reverse Roe. O’Connor disappointed them and so did Souter. Worse for them, O’Connor they thought was personally opposed to abortion. So now, they don’t believe they can trust any code. “Personally pro-life” could mean they’d respect stare decisis. They want absolute confirmation that the next nominee will vote to reverse Roe. But they can’t have that: A nominee with a judicial record that makes it clear that they are a vote to reverse Roe is a screaming wingnut that probably cannot get confirmed, and as soon as a nominee with no paper trail makes that view plain, the nominee 1) is probably not confirmable; and 2) may be unfit as having prejudged matters that may come before the Court.

  11. …is “borked” even the right term when the nominee is totally and completely unqualified?

    When Robert Bork was recently asked if Miers is being “borked”, his response was “No. No one is lying about her record.”

  12. As of this morning, Jon, Bork is against Miers’ confirmation. He said in the WSJ that she cannot write clearly and persuasively. The undertone of the op-ed is that she’s a shitty lawyer and a bad conservative. He believes she is unqualified.

    Bork can say that people lied about his record; in fact, he was rejected because he held the radical view that the 9th Amendment meant absolutely nothing. He was rejected not just for holding extreme view, but for holding extreme views about how to read the U.S. Constitution.

  13. I’m fully aware of Bork’s feelings on Miers. He has been against her since the start. And without re-fighting the Bork nomination, I’ll just point out that it’s indisputable that people did in fact lie about his record. You had people like Ted Kennedy saying he was in favor of bringing back segregation, which was nonsense. His views on the 9th Amenndment may have been controversial, but they are certainly within the mainstream of a certain body of legal thought. And they are no more “extreme” or “radical” than complete legalization of prostitution, a pet cause of another Supreme Court nominee who was confirmed handily (that would be Ruth Ginsberg).

  14. “mainstream of a certain body of legal thought”

    That’s like saying someone’s income is “average within their income group.” It provides no information about the absolute position in relation to the actual mainstream. The idea that taxes are voluntary is “mainstream” within the tax protester community.

    When I went to law school, the idea that Lochner was correctly decided was “mainstream” within a certain group of ultraconservative lunatics.

    (for those who don’t know what we’re talking about, Lochner was “substantive economic due process,” the idea that the government could not interfere with the right of people to contract by imposing work-hour and minimum wage laws. Under that doctrine, much of the New Deal was unconstitutional. Except among ultra-conservatives who wish to return to the legal system of the 1890s, Lochner is on everyone’s short list of most clearly and dangerously erroneous Supreme Court decisions. It was reversed, in a story commonly described as “the switch in time that saved nine” — one of the justices from the Lochner majority changed his view, mooting FDR’s plan to add more justices to the Court to change its balance on substantive economic due process.)

    Are you suggesting that Ginsburg believes the Constitution requires the decriminalization of prostitution, or merely that this is good policy? The latter is a lot of folks’ position, including most libertarians and many feminists. The former is not a position I have ever heard expressed.

  15. I’m not going to get too deeply into Lochner, in part because I haven’t taken con law yet so I haven’t had the chance to study it to my satisfaction, but you’re mischaracterizing its defenders as “ultraconservative”. Randy Barnett and Richard Epstein, the latter being one of the most influential legal scholars of our generation, both are pro-Lochner, and they’re about as libertarian as you can get. Regardless, I think you would agree with me that the legal academy is generally to the left of the rest of society. Hence, views that many in the academy view as “outside the mainstream” can be perfectly defensible.

    Do I know that Ginsberg believes the Constitution requires legalizing prostitution? Not for a fact, although quite honestly I wouldn’t be surprised if she ruled that way if and when the issue came before the Court. Would you be? Ginsberg hasn’t had a hard time finding a lot of her other policy preferences tucked away in the Constitution’s “penumbras”.

  16. Jon, while I can see (and make) the policy arguments for decriminalizing prostitution (though it’s not my position — I’m a “Swedish model” advocate), I cannot see any jurist holding that the Constitution requires that prostitution be decriminalized. Maybe some legal academic trying to get tenure might take a flier at it.

    So you’re conceding the point: You do not assert that Ginsburg’s position on prostitution is a matter of constitutional interpretation. (I’m sure you would agree that “I wouldn’t be surprised” is not the same as asserting that it’s true. I wouldn’t be surprised if the late Chief Justice was secretly a Nazi sympathizer, but I can’t assert it as fact because the evidence of his anti-semitism is too thin.)

    On Epstein and Barnett, I do tend to throw in the libertarians with the wingers. That’s not entirely fair, I know, but when they’re forced to choose, they always seem to line up with the right, don’t they? Volokh, anyone?

  17. So you’re conceding the point: You do not assert that Ginsburg’s position on prostitution is a matter of constitutional interpretation.

    I’m not condeding anything. I don’t see why it should make a difference whether Ginsberg supported legalized prostitution on constitutional or policy grounds. My point is that either way, it’s (arguably) still a pretty “outside the mainstream” position, and yet she was confirmed by some 90+ votes.

    You seem to think Bork wasn’t confirmed on the basis of some arcane academic points regarding his views on the 9th Amendment. I guess you just hold the Senate’s collective intellect in higher esteem than I do. My belief is that the man was smeared, pure and simple. In fact, I think one can probably make a pretty strong case that the views of Justice Scalia on the 9th Amendment aren’t all that far off from Bork’s. And Scalia had a paper trail and was confirmed by a very wide margin just the year before the Bork nomination.

  18. From what I’ve heard, Ginsburg isn’t an extreme liberal. After all, Orrin Hatch suggested her (and Breyer, IIRC) as moderate-liberal nominees who would be acceptable to Senate Republicans.

  19. On Epstein and Barnett, I do tend to throw in the libertarians with the wingers. That’s not entirely fair…

    Whether it is fair is a less interesting question than whether it’s in compliance with reality. Libertarians and conservatives have formed a political alliance to keep the tree-hugging brie-sucking comsymps (THBSC) safely confined to the academy, but we don’t agree on everything; or even all that much, really.

  20. Orrin Hatch didn’t “suggest” her in the sense that she was his #1 pick for a justice. He recommended her as a solid liberal who could win confirmation (Clinton’s first choice, Bruce Babbit, was viewed as unconfirmable). Since her confirmation, Ginsberg, who was once counsel for the ACLU, has rarely disappointed the far left. Perhaps on the medical marijuana issue, but even there she voted in accord with the judicial liberal preference for plenary federal regulatory power.

    Breyer has been somewhat more of a moderate, but the number of times he sides with Scalia or Thomas on important constitutional issues are probably only worth remembering because of their infrequency.

  21. “a solid liberal who could win confirmation”
    Which means that she may be liberal, but she isn’t a left-wing version of Bork; Kennedy and Roberts are solid conservatives but they are not so extreme (we shall see about Roberts, but that appears to be the CW at this time) that they garnered a filibuster or substantial opposition. IIRC (my knowledge of SC cases is limited to the really old ones I had to read for history class), Breyer sided with the minority in the juvenile death penalty case.

  22. Kennedy and Roberts are solid conservatives but they are not so extreme…

    It’s highly debatable, at least in Kennedy’s case, whether he’s a “solid conservative”. In any event, conservative and liberal are difficult labels to apply when you’re talking about judicial, rather than political views.

    Breyer sided with the minority in the juvenile death penalty case.

    Your memory is faulty. I assume you’re talking about Roper v. Simmons, in which Breyer joined Kennedy, Stevens, Ginsburg, and Souter in strking down the death penalty for minors.

  23. I’m not condeding anything.

    I didn’t phrase it in the form of a question. You have not asserted that Ginsburg believes that the Constitution requires the decriminalization of prostitution. You have admitted that you don’t know this to be true:

    Do I know that Ginsberg believes the Constitution requires legalizing prostitution? Not for a fact …

    For a Supreme Court Justice, an ideosyncratic or far-out policy view is very different from an ideosyncratic view of the Constitution of the United States. Witness the defense of Miers’ view of abortion by the administration: that her policy opposition to abortion does not necessarily infer that she believes Roe should be overturned.

  24. Yeah, my memory is faulty, so take it with a grain of salt when I say that Kennedy sided with the minority in the controversial gays and Boy scouts case, the partial birth abortion ban and some affirmative action cases as well. : P

    It’s worth noting that the ACLU is not exclusively a liberal organization – some of their more well known positions, like about detainee abuse, flag-burning, abortion, obscenity, tend to be thought of as more liberal, but they also oppose campaign finance restrictions and VAWA, which most liberals support.

  25. Kate, don’t forget the Nazis at Skokie. The ACLU’s broad defense of free speech, whatever the speaker’s view, alienated a ton of support that the ACLU had in the 60’s and 70’s.

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