Bench Memos

NRO’s home for judicial news and analysis.

The Last Straw


Ed Whelan is on the money when he says that the 1989 Miers’s questionnnaire is “not irrelevant” to the issues at hand. Ed also finds it “encouraging”. It is easy to see why. Miers’s answers are probative evidence that she is not just “personally” pro-life. Her answers are proof that–at least sixteen years ago–she also believed that her pro-life convictions ought to be made part of the highest law of the land. And, though her answers do not logically imply that Miers (even then) thought Roe was wrongly decided, I think that they very strongly suggest that she did think so.

Why are the answers “not irrelevant” even though–as Miers’s handlers are so eager to remind us–no one can say what she will do about Roe now, as a Justice? It is true that overturning Roe in, say, 2006 involves a lot more than is involved in saying–in 1989–that one supports an amendment to limit abortions to life-of-the-mother exceptions. But, assuming Miers still believes what she asserted sixteen years ago, there are two important connections to today’s abortion jurisprudence.

One is that on most, if not all, of the constitutional issues in orbit around Roe–parental notice and probably partial-birth abortion just in the present term–I think that a judge has to be ideologically pro-abortion to go wrong. I think that anything like normal legal reasoning–so long as it is not distorted by a pro-choice idelogy–sustains the New Hampshire law about parental notice and the federal PBA law. And Miers is not ideologically pro-abortion.

The second connection assumes that Miers believes that permissive abortion laws promote a grave injustice, that injustice being the intentional killing of innocent human beings. On this assumption Roe introduced and perpetuates a grave injustice. This does not by itself, perhaps, amount to a complete case for overruling Roe asap (though, in my view, it is close). But if Miers believes (as I assume she does) that Roe licenses homicide then that belief is at least a big push towards overruling it.

How so? Let me illustrate the point by entertaining a contrary assumption about what is wrong with Roe. Suppose that you are agnostic about the morality of abortion. Or that you are a liberal, in that you believe abortion is homicide but that you would not want to “impose” that view on other people in our pluralistic society. Or, you believe… whatever, so long as you hold that the basic flaw in Roe is that it usurped a power reserved by the Constitution (rightly understood) to the states. In this view you would think that Roe was wrong much as you think a lot of commerce clause cases are wrong, or as any on the long list of incorporation cases–Wolf, Mapp, Miranda, Gideon–is wrong. You view all of these cases as usurpations of state authority, perhaps with a mix of good and ill effects, all now woven into the fabric of national life. They work no fundamental injustice, though, and you would be uncertain–I submit–about whether any or all of them should now be overruled.

But, if you are neither agnostic nor a liberal about abortion–as it appears that Harriet Miers is not–then you have a distinctive and uniquely powerful reason to overturn Roe. And you just might do it.

As I said, Ed Whelan is “encouraged”. But I am not. I have all along expressed grave doubts about Miers’s nomination to the Court. The questionnaire finally persuades me that she ought to be withdrawn now. Why?

Miers either believes now what she asserted in 1989, or she does not. If she does not then I oppose her confirmation to the Court. She is scarcely qualified and if she is not going to correct what I take to be a grave injustice, then why support her?

If she does still believe what she then asserted, I oppose her confirmation to the Court. I leave aside all negative thoughts about the unimaginable White House bungling which her answers now lay bare–the twisted games of telephone (from Hecht to Rove to Dobson to the Arlington Group and all the way back again) and all that, all now revealed to be gratuitously wrong-headed. The cat is out of the bag. Did not the White House see this questionnaire coming?

The reason why I oppose her confirmation–even if she still believes what she said in 1989–is this: now we are going to have the fight within the Senate and in the media which conservatives such as myself have all along called for. Unless Miers repudiates her 1989 answers–and, in that case, see above–Schumer & Co. are going to treat her as if she will overrule Roe. Very well. But if we are going to have a climactic battle in the Senate over Roe, we need to have it on considerably better ground. Miers is scarcely the person anyone would choose to make the long awaited case against Roe, with the whole pro-choice phalanx put up against her. I mean no insult whatsoever in saying that Harriet Miers she simply is not up to the job of cogently describing, defending, and justifying before the world what will go into the history books as the most important constitutional law decision since 1954. John Roberts could have done it, as could Edith Jones, to name one available replacement.

Harriet Miers’s nomination made the little sense that it did when it could be taken as a true “stealth” candidacy. But now the cloaking device has been withdrawn, and she should be too.


Subscribe to National Review