Some thoughts on Harriet Miers
Everything I hear and read about Harriet Miers is negative, which is remarkably unusual. This link to an article on Slate really set me off, because like everything else I've read about her religious bent, up to and including W.'s comments, it really misunderstands the relevant questions.
The real issue for Harriet Miers, or any other Supreme Court nominee, is her judicial, not her religious, philosophy. Two of the justices--Ginsburg and Breyer (the two appointed by Clinton and the two I've seen in the flesh, Ginsburg when she judged the moot court finals when I was in law school and Breyer because he was on the faculty)--are Jewish. Observant Jews do not believe in eating pork or shellfish. Nonetheless, it would be absurd to suggest that if Ginsburg or Breyer were particularly observant Jews, they would read the Constitution as prohibiting the eating of pork or shellfish because it accorded with their religious philosophy.
The same should be the case with Miers. Let's just posit that these people who are all whispering that she is this or that kind of Christian, that she told this justice of the Texas Supreme Court (who should know better than to shoot his mouth off, though maybe he was a W. appointee and so can be expected to have the brainpower of a newt--nope, looked it up, he was elected while W. was governor; of course, he too went to Yale) that she is pro-life or whatever. None of this ought to matter. None of this should be the subject of focus or inquiry.
What matters is how she interprets the Constitution. If she believes that she should, or can, interpret the Constitution only to be consistent with her religious beliefs, she is not qualified for her current job as White House Counsel, let alone for a federal judicial position. There are many ways to interpret the Constitution, but none of them include interpreting it solely in conformance with one's own religious beliefs. The Constitution doesn't outlaw pork (hello, Don Young!) just because you're Jewish, and it doesn't outlaw abortion just because you're an evangelical Christian (and it doesn't mean Bush won in 2000 just because you're a Republican, Justice Kennedy).
I was taught in law school by a very smart professor named John Hart Ely, who wrote a very influential book called Democracy and Distrust (buy it here from Amazon.com). The ultimate thesis of his book was that in Roe v. Wade, Justice Blackmun proved that the Fourteenth Amendment did not prohibit a state from allowing abortion (because a fetus isn't a person under the Constitution) but was, in Professor Ely's view, unsuccessful in demonstrating that the liberty interest protected by the Fourteenth Amendment did not allow a state under any circumstances to interfere with a woman's right to choose before the second trimester, which is part of the holding in Roe. In my opinion, Professor Ely was essentially right as a constitutional matter as things stood in 1973, and had he been on the Supreme Court that year, he might have written a relatively respectable and influential dissent to Roe.
But, well, two things: (1) Roe is not within a million miles of the worst-reasoned Supreme Court case, or even Supreme Court constitutional case. The Supreme Court completely vitiated the Fourth Amendment whenever the search is of an automobile. There is no textual distinction between automobiles and other "effects" of a person, there is no meaningful distinction between the mobility of an automobile in the late 1970's, when they engineered this nonsense, and the mobility of a fast horse or stagecoach when the Fourth Amendment was drafted and in fact it's probably easier to disable an automobile from going anywhere while seeking a warrant, which can be done using today's faster transportation and communications, thna it was a fast horse or wagon in 1791. Moreover, those cases denied Americans rights. Roe grants Americans rights. If the Supreme Court is to err, doesn't the very nature of the Bill of Rights indicate that it should err on the side of greater, not lesser, rights? (2) Roe is a 32-year old precedent. Its parent, Griswold (the contraceptive/right of privacy case) is such a given now that even John Roberts did not challenge it in his confirmation hearings. Its abortion-related progeny, Webster and the like, have for the most part whittled back the "slippery slope" arguments that Roe meant federally-funded abortion on demand for minors without any parental or judicial input. Its other progeny, such as Lawrence v. Texas (the sodomy case) have been carefully measured and reasoned steps along the road, not giant leaps. The Massachusetts gay marriage case, Goodridge, really followed from Lawrence and Griswold, as well as the Massachusetts equal rights amendment, than from Roe. So if Roe in some sense added to the liberty clause of the due process clause beyond its intended scope, the world has not come crashing down upon us as a result.
Back to Harriet Miers. From all I have read, I'm not sure that she could make as reasoned an argument about Roe as the above. Does that make me more qualified to sit on the U.S. Supreme Court? No. On the other hand, I could probably rattle off a list of 200 women lawyers in the U.S. whom I know personally who are more qualified. And I suspect most other lawyers could as well.
The real issue for Harriet Miers, or any other Supreme Court nominee, is her judicial, not her religious, philosophy. Two of the justices--Ginsburg and Breyer (the two appointed by Clinton and the two I've seen in the flesh, Ginsburg when she judged the moot court finals when I was in law school and Breyer because he was on the faculty)--are Jewish. Observant Jews do not believe in eating pork or shellfish. Nonetheless, it would be absurd to suggest that if Ginsburg or Breyer were particularly observant Jews, they would read the Constitution as prohibiting the eating of pork or shellfish because it accorded with their religious philosophy.
The same should be the case with Miers. Let's just posit that these people who are all whispering that she is this or that kind of Christian, that she told this justice of the Texas Supreme Court (who should know better than to shoot his mouth off, though maybe he was a W. appointee and so can be expected to have the brainpower of a newt--nope, looked it up, he was elected while W. was governor; of course, he too went to Yale) that she is pro-life or whatever. None of this ought to matter. None of this should be the subject of focus or inquiry.
What matters is how she interprets the Constitution. If she believes that she should, or can, interpret the Constitution only to be consistent with her religious beliefs, she is not qualified for her current job as White House Counsel, let alone for a federal judicial position. There are many ways to interpret the Constitution, but none of them include interpreting it solely in conformance with one's own religious beliefs. The Constitution doesn't outlaw pork (hello, Don Young!) just because you're Jewish, and it doesn't outlaw abortion just because you're an evangelical Christian (and it doesn't mean Bush won in 2000 just because you're a Republican, Justice Kennedy).
I was taught in law school by a very smart professor named John Hart Ely, who wrote a very influential book called Democracy and Distrust (buy it here from Amazon.com). The ultimate thesis of his book was that in Roe v. Wade, Justice Blackmun proved that the Fourteenth Amendment did not prohibit a state from allowing abortion (because a fetus isn't a person under the Constitution) but was, in Professor Ely's view, unsuccessful in demonstrating that the liberty interest protected by the Fourteenth Amendment did not allow a state under any circumstances to interfere with a woman's right to choose before the second trimester, which is part of the holding in Roe. In my opinion, Professor Ely was essentially right as a constitutional matter as things stood in 1973, and had he been on the Supreme Court that year, he might have written a relatively respectable and influential dissent to Roe.
But, well, two things: (1) Roe is not within a million miles of the worst-reasoned Supreme Court case, or even Supreme Court constitutional case. The Supreme Court completely vitiated the Fourth Amendment whenever the search is of an automobile. There is no textual distinction between automobiles and other "effects" of a person, there is no meaningful distinction between the mobility of an automobile in the late 1970's, when they engineered this nonsense, and the mobility of a fast horse or stagecoach when the Fourth Amendment was drafted and in fact it's probably easier to disable an automobile from going anywhere while seeking a warrant, which can be done using today's faster transportation and communications, thna it was a fast horse or wagon in 1791. Moreover, those cases denied Americans rights. Roe grants Americans rights. If the Supreme Court is to err, doesn't the very nature of the Bill of Rights indicate that it should err on the side of greater, not lesser, rights? (2) Roe is a 32-year old precedent. Its parent, Griswold (the contraceptive/right of privacy case) is such a given now that even John Roberts did not challenge it in his confirmation hearings. Its abortion-related progeny, Webster and the like, have for the most part whittled back the "slippery slope" arguments that Roe meant federally-funded abortion on demand for minors without any parental or judicial input. Its other progeny, such as Lawrence v. Texas (the sodomy case) have been carefully measured and reasoned steps along the road, not giant leaps. The Massachusetts gay marriage case, Goodridge, really followed from Lawrence and Griswold, as well as the Massachusetts equal rights amendment, than from Roe. So if Roe in some sense added to the liberty clause of the due process clause beyond its intended scope, the world has not come crashing down upon us as a result.
Back to Harriet Miers. From all I have read, I'm not sure that she could make as reasoned an argument about Roe as the above. Does that make me more qualified to sit on the U.S. Supreme Court? No. On the other hand, I could probably rattle off a list of 200 women lawyers in the U.S. whom I know personally who are more qualified. And I suspect most other lawyers could as well.
posted by Rick at 2:25 AM
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