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Bench Memos

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Miers and Abortion



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I find very encouraging the Texans United for Life candidate questionnaire that Harriet Miers completed in 1989, when she was running for Dallas city council. Let me explain why.

As I spelled out more fully in my recent Senate testimony, Roe v. Wade is the Dred Scott of our time. Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. It has grossly distorted American politics for three decades. All Americans, no matter what their views on abortion policy, should recognize that the Supreme Court’s unconstitutional power grab on abortion must end and that the public-policy issue of whether and how to regulate abortions should be returned where the Constitution leaves it–to the people and to the political processes in the states.

There are, I believe, two basic reasons why someone would assert that Roe was rightly decided in the first instance or should in any event be maintained as precedent. Given the natural temptation that everyone has to read into the Constitution one’s own policy preferences, someone who prefers the abortion regime that Roe created to what he anticipates would result from the democratic processes would defend Roe. Second, someone who is badly confused about the proper role of the courts in our constitutional republic–someone, for example, who thinks that the Court (in the words of the joint opinion in Planned Parenthood v. Casey) has a roving mandate to remove from the democratic process any interest that he believes is part of some New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”–might likewise conclude that Roe either was correct or should be left in place anyway.

In short, while I of course recognize, as the White House has properly stated, that “A candidate taking a political position in the course of a campaign is different from the role of a judge making a ruling in the judicial process,” I do not think it irrelevant to the cause of good judging that a Supreme Court nominee is pro-life. Specifically, someone who is genuinely pro-life avoids the first failing: he will not be tempted to read pro-abortion policy preferences into the Constitution for the simple reason that he does not hold those preferences. (He might, of course, be unduly tempted to read the Constitution to bar permissive abortion laws, but, as I explain here, there is no serious prospect of a Court majority for that proposition.) A pro-life nominee may, of course, still be subject to the second failing.

Miers’s 1989 questionnaire response shows her to have held strong pro-life views. Indeed, I doubt that any Supreme Court nominee has ever had a clearer record of embracing pro-life policy positions. I see no reason to regard her questionnaire response as perfunctory. On the contrary, the fact that she supplemented her “yes” answer to question 5–”Will you vote against the appointment of pro-abortion persons to City Boards or Committees that deal with health issues?”–with the insertion “To the extent Pro-Life views are relevant” indicates that she was being careful and thoughtful in responding to the questionnaire. I also am not aware of any evidence indicating that her views on abortion have changed.



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