Miers's Muddle

With the understanding that Harriet Miers’s Spring 1993 speech to the Executive Women of Dallas is just part of the evidence that has led me to conclude that she should withdraw her nomination, let me highlight the elements of that speech that I find disturbing.

Much of the first ten pages I find unobjectionable in substance (though certainly not well composed). Indeed, Miers soundly criticizes “a shifting to the judicial system of the responsibility for making all of the hard decisions” and the unwillingness of political leaders to make these decisions:

"My basic message here is that when you hear the Courts blamed for activism or intrusion where they do not belong…Stop and examine what the elected leadership has done to solve the problem at issue and whether abdication to courts to make the hard decisions is not a too prevalent tactic in today’s world. Politicians who are too concerned about maintaining their jobs."

No quarrel from me on any of this. I would have preferred that she make clear that political abdication does not ipso facto justify judicial intervention, but that could fairly be seen as tangential to her “basic message.” There are propositions in these first ten pages that are sloppily stated or that suggest a failure to make important distinctions (such as the description of Dallas as “basically segregated”) or that would seem to mark Miers as a political liberal, but they don’t speak meaningfully to Miers’s judicial philosophy.

The part of the speech I find disturbing is on two pages near the end (specifically, the pages stamped WH3-05192 and WH3-05193).

On the topic of “law and religion,” Miers wrote: “The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s [sic] right to decide for herself whether she will have an abortion.” This tendentious framing of what is at issue in the abortion debate — and its utter obscuring of the appropriate roles of the courts and the political branches — would appear to come straight from Planned Parenthood.

Hmmmm....

Perhaps Miers didn’t mean, or no longer means, what she said.

Well, we can settle part of this. If she meant what she said she still has to mean it because the President and the White House have told us repeatedly that Harriet Miers doesn't change and that she'll be the same 20 years from now as she is today. The only way out of that is to claim that she has since changed her mind but that one of her New Years resolutions this year was to never change again....oh wait.....she's already changed just this year when, according to her own written answer on the questionnaire that she changed her mind about being considered as a nominee to SCOTUS.

Compare Harriet Miers's answer to question #28 on the Senate Judiciary Committee's questionnaire paraphrasing the wording of the majority opinion in Planned Parenthood v. Casey, the 1992 case which reaffirmed Roe v. Wade and expanded abortion rights:

"Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to the question. Thus, whether a prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests mitigate against overruling."

—Harriet Miers

"So in this case, we may enquire whether Roe's central rule has been found unworkable; whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism discounted by society; and whether Roe's premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed."

U.S. Supreme Court
PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992)

The court must also consider other factors, such as whether the prior decision has proven unworkable
So in this case, we may enquire whether Roe's central rule has been found unworkable

whether developments in the law have undermined the precedent
whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism

whether legitimate reliance interests mitigate against overruling
whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it

Miers parroted Souter, O'Connor, and Kennedy's exact reasons for not overturning Roe v. Wade while professing her deep abiding respect for stare decisis.

Miers says "Judicial activism can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent"

Souter, O'Connor, and Kennedy refer to the stare decisis of Roe no less than 11 times in their opinion, making sure to cement it as Court precedent. Miers's answer binds her to deference.

This shouldn't be giving anyone comfort.
It is a strong signal that she will turn to that same doctrine and not vote to overturn Roe.

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Harriet Miers, 1993.
Um.....she plagiarized this.

"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the meaning of human life." Anthony Kennedy, Planned Parenthood of Southeastern Pa.v.Casey, 1992.
Check my post above. (It's pretty hard to miss ; )
Miers has plagiarized a lot from the pro-abortion arguments of Casey.
This is not good at all.
She is flaunting the fact that she will uphold Roe, hiding it in plain sight.

"Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S., at 685 . Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, supra, 405 U.S., at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." [505 U.S. 833, 852]

U.S. Supreme Court
PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992)

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