October 6, 2005

"Decent judicial candidates that are opposed to Roe v. Wade have their opposition integrated into a coherent theory of constitutional interpretation."

That's something I wrote after one of the presidential debates last fall:
I had the impression that Bush was asked whether he had a "litmus test" about Roe v. Wade for judicial appointments--in fact, in my live-blogging, I faulted Kerry for not answering the question whether he had a litmus test---but I see that it was Bush who took the question "would you like to [overturn Roe v. Wade]?" and rephrased it: "What he's asking me is, will I have a litmus test for my judges?"...

Bush could easily give a negative answer the question as he rephrased it into "litmus test" form: "I will pick judges who will interpret the Constitution, but I'll have no litmus test." This hides the ball (very much the way judicial candidates themselves hide the ball). Decent judicial candidates that are opposed to Roe v. Wade have their opposition integrated into a coherent theory of constitutional interpretation. Bush must pick good judges, not one-issue anti-abortion types, so anyone with a chance at confirmation would be someone who would be presented as a well-qualified constitution interpreter. The antagonism to Roe would exist within a theory of constitutional interpretation. I presume Bush would pick judges with the sort of approach to interpretation that excludes Roe v. Wade.
I hope I was right about that! But apply that to the Miers nomination. For me to be right, her nomination must fail. Right?

15 comments:

Sloanasaurus said...

I don't get your post. You can have a fairly stright forward judicial philosophy that would result in the overturning of Roe. Most people recognize that Roe was blatent judicial activism. If Miers is a committed originalist, Roe goes down as being wrongly decided (not an originalist decision) and not long enough ago to say it is part of the politcal culture (there would be much debate over it in the various legislatures...in contrast to paper money where there would be no debate).

Ann Althouse said...

Sloan: The key to understanding my question is in the title and in the phrase "anyone with a chance at confirmation would be someone who would be presented as a well-qualified constitution interpreter."

Too Many Jims said...

Miers may have a "coherent theory of constitutional interpretation" which would lead to overturnning Roe (or otherwise be consistent with a "conservative" judicial approach) we just have nothing to judge that on. I think it is somewhat dangerous, some of the support that the supporters are pushing (e.g. "she goes to an evangelical pro-life church" or "Dobson says she is ok, he just can't tell us why") because it suggests that what is important is not the "coherent theory of constitutional interpretation" but rather the result (i.e. Roe gets overturned).

Sloanasaurus said...

Yes, I agree. A results oriented justice would be a nightmare. Besides, we already have four of those on the bench.

Jack Roy said...

Surely we don't yet know that Miers is so objectionable, even though we don't yet know that Bush had good reason for appointing her. If there's no pleasant surprises from here on, and you are to be proven correct, I guess Bush would have to withdraw her name. But she might be (and appear to be) the next coming of Holmes, who knows? (I'm being intentionally cute.)

On the central thrust of your post: Very well put.

To Sloan, and to anyone else who thinks Roe's wrongness is uncontroversial: Do you think the rights identified in Pierce and Meyer v. Nebraska were picked out of thin air, just as the rights in Griswold and Roe were? Or do they just not extend as far as later Justices said? It's hardly a trivial point, and these are not rhetorical questions.

Sloanasaurus said...

Finding privacy rights is not the largest issue.

The mistake Roe makes is deciding when life has value. That is clearly a political/moral question to be decided by society (through voting) and not one to be decided by the Court.

John(classic) said...

Is "where does it say that?" a "coherent constitutional theory"?

Troy said...
This comment has been removed by a blog administrator.
Doug Lee-Knowles said...

Oh, Gawd, please let's don't start arguing Roe, because that's not the point. I think the question about Miers's suitability for the Court is, has she thought about abortion from a constitutional-law perspective? Has Miers thought about anything from a constitutional-law perspective?

But I disagree with Prof. A. that Miers's only has a chance at confirmation if she can be "presented as a well-qualified constitution interpreter." The politics of confirmation are more complicated than that- she'll have to be presented as different things to senators with different constituencies. Did everyone read the pieces probing her personal religious faith? That's one of the ways she can win a vote from some senators. With others, she will only get a vote if she's a "well-qualified constitution interpreter."

Jack Roy said...

Doug's got it right. I formally retract &c. &c.

Simon said...

I think that's exactly right. The best reason to overturn Roe has nothing to do with abortion; the best reason to overturn it is becasue it is a ghastly arrogation of judicial power that rests on a fundamentally flawed and illegitimate doctrine. I would be opposed to Roe whether I was in favor of abortion or not.

Sloanasaurus said...

I think if Miers states that she has an originalist view of the constitution and rejects the constitution as a "living document" we can feel comfortable that she should be a conservative jurist.

Anyone who views the constituion as a "living document" is immediatly admitting they are a judicial activist. These people should be rejected as judges.

Cartledge said...

Making judicial appointments on the basis of predetermined outcomes is a dangerous path.
If anything, the Miers choice might help bring the court back to where it should be.
Your self quote is tather qwordy when all you meant was "choose judges who agree with me!"

Ann Althouse said...

Cartledge: Except that's completely not what I said.

Simon said...

Sloan:
I think if Miers states that she has an originalist view of the constitution and rejects the constitution as a "living document" we can feel comfortable that she should be a conservative jurist.

It isn't enough to say it; she has to be able to prove it. We're all on such tenterhooks over "will she be another Thomas or another Souter" - nobody ever worried about whether Bork was "another Blackmun", because he had a twenty year paper trail proving where he stood!

Miers has to prove her credentials. I don't see that she has any facility to do so, and I don't think she would have been nominated if she could.