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Bench Memos

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Me Too, Andy



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It may not usually a good use of cyberspace to offer a simple but sincere
second of another’s intervention. But, what the heck. Here goes.

I think Andy McCarthy gets it just right in his “What Does Harriet Miers
Think?” I should only like to underline — in very dark ink — his point
about Ms. Miers and Roe. She is not necessarily either a “stealth”
candidate or a Souter. That is, she is not necessarily silently intending
to overturn Roe, or silently willing to let it live. It is quite possible
(as Andy suggests) — and maybe even likely, I suggest — that Ms. Miers
does not know how she would vote on Roe. It is quite possible and maybe
likely that she has not given much thought to the kind of record she would
consider adequate to present the question; what even the basic shape of an
overruling opinion would be; just what it would mean to “overrule” Roe and
whether it would give way to the status quo pre-1973: no appreciable
constitutional restraint upon state laws on the subject.

John Roberts had an opportunity carved out a safe-harbor in which these matters could be discussed. He has the mind, the experience, and the cool
to have orchestrated a candid (but not confirmation threatening) exchange
during his hearings on these (and other) sub-issues doing business as
“overturning Roe”. He passed on the chance. Harriet Miers is not equipped
to have that discussion. And so we shall miss a second opportunity to have
a much-needed, serious — and surely contentious — national conversation
about Roe.



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