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Bench Memos

NRO’s home for judicial news and analysis.

Assurances and the Separation of Powers



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John Fund’s story in today’s Wall Street Journal is a bombshell. On the basis of notes taken by a participant, Fund writes of an October 3 conference call in which religious and social conservatives were assured that Harriet Miers would vote to overturn Roe v. Wade, should an opportunity arise. A leading participant in the call, Dr. James Dobson, introduced Justice Nathan Hecht of the Texas supreme court and Judge Ed Kinkeade of the Dallas federal district court, saying that it was Karl Rove’s suggestion that the conservative leaders talk to the two of them. According to the notes in Fund’s possession, when an “unidentified voice” asked directly about Miers’s position on overturning Roe, both judges gave confident assurances–or predictions?–that she would do so. There are denials and avoidance from the two judges, but Fund is confident of his story, having multiple witnesses to corroborate the notes.

Naturally this is all red meat for potential scandal on the Hill. As Fund notes, Democratic senators (and a few Republicans too) will take a keen interest in who said what to whom and when. There is no evidence in Fund’s article that a) Karl Rove had received prior assurances on Roe from Hecht and Kinkeade, let alone from Miers herself; or b) that James Dobson had any advance knowledge of what the two judges would say if asked about that subject; or c) that Hecht and Kinkeade were speaking with real knowledge of what Miers would do, rather than offering their own best guesses, perhaps over-confidently, in an environment in which their importance and closeness to Miers were being accentuated. The White House can surely say, plausibly, that it did nothing to solicit such questions and answers even if it did arrange the two judges’ availability for the call, and that Messrs. Hecht and Kinkeade do not speak for Ms. Miers–only she can speak for herself, and she’s not answering such questions.

Nonetheless this looks very bad. To have any White House fingerprints on a confidential exchange that resulted in any kind of assurances–however speculatively offered–about a nominee’s future vote on the fate of a specific Supreme Court, is a matter that will justly attract the attention of senators. All senators, anti-Roe as well as pro-Roe, should be concerned about such backroom maneuvering in what amount to the precincts of the executive branch. It is a maxim of the separation of powers that each branch of government jealously guards its prerogatives, and reacts almost instinctively to the merest whiff of encroachment on them. If there is actual knowledge in the executive branch about Harriet Miers’s views on Roe v. Wade, then the Senate is equally entitled to that knowledge, in order to do its work of advice and consent properly. (This is not at all like the situation with confidential executive-branch documents like those withheld during the John Roberts nomination.)

On the other hand, there may be no actual knowledge at all, and Hecht and Kinkeade may be self-important blabbermouths. But the importance of candid, direct colloquies on this subject in the hearings on this nomination just got heightened considerably by John Fund’s story.



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