Bench Memos

Pamela Harris and ‘Abortion Distortion’

The most important question about Pamela Harris, President Obama’s newest nominee to the Fourth Circuit, is her judicial philosophy. To put a sharper point on it, the question is whether a political operative with an aggressively liberal agenda can put aside her political beliefs and follow the law.

It’s well known that Democrats generally don’t appoint anyone to the federal bench who isn’t a reliable supporter of abortion. As Shannen Coffin pointed out in a 2004 article in National Review, this selection bias sometimes leads to “abortion distortion” – courts twist the law to achieve a result just because abortion is involved. So let’s ask the question squarely: As an appeals-court judge, would Pamela Harris be prone to “abortion distortion,” or will she stick to interpreting the law?

As it turns out, we have some pretty unequivocal evidence on this question in a 2006 blog post on the American Constitution Society’s website (since removed). Before the Supreme Court had issued its decision in Gonzales v. Carhart and Gonzales v. Planned Parenthood (2007), Harris and Indiana Law School professor Dawn Johnsen prognosticated about the two 2007 cases, brought by notorious late-term abortionist Leroy Carhart and Planned Parenthood to enjoin enforcement of federal ban on partial-birth abortions,.

Harris’s post is revealing not so much for what it predicted but for what it shows about her sense of proper judicial judgment. Harris did her best to characterize the cases as an easy win for the abortionist under Stenberg v. Carhart (2000), even though the challenged federal ban was notably different from the Nebraska partial-birth-abortion ban struck down in Stenberg. Here’s how Harris characterizes the federal law:

In 2003, Congress responded defiantly by passing the Partial-Birth Abortion Ban Act of 2003 (“Federal Abortion Ban”), a federal version of essentially the same law the Court struck down. Congress deliberately omitted the health exception mandated by Stenberg–and substituted “legislative findings” that, contrary to the Court’s conclusion in Stenberg, the banned procedure is “never necessary to preserve the health of a woman.”

Note the use of the word “essentially.” Yes, it was “essentially” the same law, except that it was deliberately drafted to fix the deficiencies the Supreme Court had found with the Nebraska law in Stenberg. In addition, Congress had made factual findings about the necessity of using the partial-birth-abortion procedure. Aside from reciting those differences, Harris never bothered to mention that Stenberg might actually be distinguishable. To Harris, it seems, all abortion laws look alike.

Recognizing that the Court might not agree, though, Harris tried to explain why the case might turn out the other way. Harris proposed that the Court could end up striking down the law with a power play:

On the one hand, the Court may have an institutional interest in standing by its prior decision and protecting its prerogatives against what it likely will see as encroachment by Congress. Justice Kennedy, in particular, has been quick to invalidate what he views as congressional “overrides” of Supreme Court decisions.

I interpret these sentences to be asking whether Justices Alito and Roberts might use their new Supreme Court super powers to strike down the law and put Congress in its place, even though they’re unpersuaded by the legal arguments. But what are these mysterious “prerogatives?” Someone should ask what “prerogatives” she thought the courts would have.

Harris then implied that there are only two options if the Court ends up upholding the law: the dishonest option or the policy-driven option.

On the other hand, though, is the fact that the Stenberg dissenters–again, especially Justice Kennedy–were particularly fervent in their belief that the Nebraska law should stand, regardless of what they termed “marginal” costs to women’s physical safety. With the substitution of Justice Alito for Justice O’Connor, we may well have five Justices prepared to abandon Stenberg–either behind the guise of deference to Congress’ “findings,” or by overruling Stenberg outright. [citation omitted]

The third option, of course, is that the justices honestly think that Congress adequately distinguished the federal law from the state law struck down in Stenberg. Harris apparently didn’t think that this was an option, even though that’s exactly what the majority ultimately did.

Ironically, Harris concluded the blog post by invoking federalism, suggesting that upholding the statute would allow Congress to prevent the states from determining their own treatment of abortion rights. It is certainly true that there can be principled disagreement about whether the partial-birth-abortion law is a proper exercise of Congress’s power under the Commerce Clause. (Justices Thomas and Scalia raised this point in concurrence). But in Harris’s hands, federalism acts as a self-contradictory makeweight argument: If Stenberg were upheld, as Harris hoped, both states and Congress would have been unable to deal meaningfully with partial-birth abortion because they would be constrained by national judicial fiat.

What does all this show us about Harris’s judicial philosophy? First, she finds that the case law gives an “easy” answer when it happens to agree with her view of what the law should be. Confirmation bias is a temptation for all judges, which is why it’s especially important for judges to be demonstrably able to set their political views aside. It’s unlikely that a political operative like Harris can do that even if she tries. Second, Harris exalts the role of judicial power to the point that she believes Justices Alito and Roberts could properly consider protecting the Court’s “prerogatives” instead of just interpreting and applying the law as they took an oath to do. This is unbelievably cynical, and raises questions about what Harris thinks it would mean to “faithfully and impartially” carry out judicial responsibilities.

Such tendencies are a recipe for “abortion distortion,” suggesting that Harris is well outside the mainstream of judicial philosophy. Perhaps the Senate Judiciary Committee can explore these questions in more detail.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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