October 19, 2005

Why don't the Democrats react to Miers's support for the Human Life Amendment?

Will pro-choice Senators continue to fail to oppose Harriet Miers now that that we have seen the survey she provided to Texans United for Life in 1989?

News articles act as if this survey reveals only "her personal views on abortion" and says nothing about "whether she believed that the Constitution protected a right to abortion." But one of the questions was: "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prohibit the death of the mother, would you actively support its ratification by the Texas Legislature?" She answered yes.

That shows more than a personal view about abortion. She supported ending the right to abortion. True, it doesn't say whether she would say there is no right to abortion in the Constitution as it exists today without that amendment, but it does show that she did not consider abortion to be a matter properly left to the individual. That is, she did not have the (very common) position opposing abortion in the sense that she herself would not have an abortion but that she would respect the autonomy of other women as they make their own moral choices. This willingness to take away the independent choice of the individual is something more than personal. It is an attitude toward individual rights that affects how a judge would approach the question whether there is a constitutional right to abortion.
Senator Dianne Feinstein, a California Democrat and leading abortion rights advocate on the Judiciary Committee, called Ms. Miers's responses to the survey troubling.

"The concern is whether she is able to look at issues relating to the health of the mother, which is coming before the court, relating to Roe, in an open and unbiased manner," Ms. Feinstein said, referring to Roe v. Wade, the 1973 case that established a constitutional right to an abortion.
Why such a lukewarm respose from the Democrats? If the files on John Roberts had contained something like this they would have boiled over.

It's no mystery. The Democrats want Miers confirmed because they fear a more powerful nominee. Roberts was opposed because of his strength, because he clearly had what it takes to be a Supreme Court justice. The Democrats tolerate Miers because she seems to lack the qualities that will make her a solid and influential justice, and they are hoping she will fall under the sway of the liberal justices who will court her vote. It's the best they can hope for from Bush. In this sense, they are protecting the right to abortion.

President Bush showed his disrespect for the independence of the judicial branch when he chose Miers, and the Democrats are doing the same thing now as they give her a pass.


Dave said...

"independence of the judicial branch"

You're kidding, right?

Judicial nominations have been too politicized for too long for there to be any semblance of judicial independence. Bush is hardly the first and will hardly be the last.

Sloanasaurus said...

"...and they are hoping she will fall under the sway of the liberal justices who will court her vote...."

Don't you think this is a dangerous rationalization to make about something like this. I think we need to listen to what politicans actually say and do rather than rationalize away the truth. It reminds me of other historical rationalizations made by people ..."he doesn't really hate the Jews that much, he is just saying that stuff to appease those voters."

I agree with Dave. The court is just another political body. You can blame that on the crappy Justices that came before: Justices like Blackmun and Warren who turned the court into a blatent political body. The Court is an institution that deserves no more respect than Congress or the Presidency.

Ann Althouse said...

I am criciticizing Bush and the Democrats for stimulating the sort abject cynicism about the rule of law that you are expressing.

Gerry said...

Correct me if I am wrong, Ann (because I would not mean to be), but recently did you not muse upon the theory that Republicans only pay lip service to overturning Roe? That party leaders believe that to do so would cause catastrophic losses for the party afterwards?

If I am remembering correctly, would it not then follow that Democrats would also figure this out, and would therefore have it in their interests to make that happen?

(I do not believe either theory, though. I believe that Republicans, both pro-life and pro-choice, do think Roe was a bad decision. And that Democrats want to preserve it, badly.)

Mark Daniels said...

I don't think that the Constitution envisioned any of the three branches being "independent." The checks and balances built into it anticipated a constant state of conflicted interdependence, all designed to prevent any of the three from gaining ascendancy over the other two,

A Biblical scholar once described the Holy Spirit as the shy member of the Trinity, the one Person of the triune God Who interprets God to humanity and points us to the Father and the Son. It can be unseemly when people focus too much attention on the Spirit, becoming, in Paul's memorable phrase from First Corinthians, "noisy gongs" or "clanging cymbals" for no good purpose.

The Judicial Branch, as I see it, plays a similar role within the federal system to that of the Spirit. The Courts are meant to be the firm yet demure branch of the government. The Courts are a separate and equal branch of government, not meant to be deferential to the other two branches, to be sure. But it is accountable to those branches, as the Executive and the Legislative are to them. Political considerations will necessarily impinge on the selection of judges and the others branches' responses to the Court's rulings.

Presidents have always selected people for the Court who were in broad sympathy with their politics and with whom they felt personally comfortable. The Senate has always responded in a similarly self-interested manner. Nothing new in that. Indeed, the Framers seem to have expected each branch to exercise their powers in a somewhat self-centered way and dolloped out to each such powers as are necessary to keep each under control. (This may be because people like Madison and Adams had a profound sense of the reality of sin and the consequent allurements of power in every human being.)

But when for example, Franklin Roosevelt overplayed his hand as President and tried to pack the Court with new members for his particular political purposes, the Congress controlled by his own party refused to go along with the scheme. Here, the Legislative Branch was playing its Constitutional role, probably from somewhat self-interested motivations, to enforce the dynamic stasis between the branches that the Constitution established.

Irrespective of their philosophical or political perspectives, it seems that eventually, every member of the Supreme Court is sprung free from the moorings of loyalty to particular Presidents or perhaps, particular Congresses, and asserts the separate and equal perquisites of the Judiciary. (One important reason for this is that Justices aren't term-limited, something I hope is never changed in our system.)

Yes, I bemoan the overpoliticization of the confirmation process. But that it is a political process is neither new or unhealthy. Nor, in my estimation, does it threaten "an independent Judiciary," an idea that's a fiction in itself.

As to why the Dems are holding their fire, I fully expect that they will unload during the hearings. But I also believe that they'll be less outspoken even than they were about John Roberts and for the reasons you cite.

But I also surmise that one reason that Harry Reid has been so warm toward Miers from the beginning is that, like the nominee, he is ardently pro-life.

Just some meandering thoughts.


Ann Althouse said...

Gerry: I suspect all incumbents fear the disarray that would befall American politics if Roe v. Wade were overturned. It's a lot easier to think the current situation is benefiting me, so I don't want to change it (as the Republicans must think) than to think if everything changed drastically, my side would deal with the new situation better than the other side. They are incumbents, after all.

David said...

Yet if Miers were to have actively opposed such an amendment, would the situation not be the same in that one could state she was no longer "unbiased"?

There are only two positions on the abortion question, one is either pro-life or pro-choice, true? Thus, every nominee brings to the court their position. One could also equally argue that a pro-choice nominee is willing to impose their worldview on the father and the unborn, etc.

Yet the question is not the personal belief(s) of the nominee, but whether or not said nominee will impose their belief(s) or the law.

A rather substantive difference, I would think.

Dave said...


I would definitely agree that my cynicism about the courts is a function of the politicization of the nomination process.

All I was trying to say was that I hardly fault Bush for its politicization--his actions are but one in a long line of such nominations.

At least Roberts seems to be well qualified.

Simon said...

It's a tough call for dems. On the one hand, I think the recent hearings removed any remaining doubts as to the fact that they are incapable of thinking in any terms other results; the idea that something could be wrong but still constitutional - or that (the horror!) some things are actually incumbent upon them as legislators - is simply alien to them. These idiots slept through explanations of formalism at law school.

On the other hand, I think Ann's right. If the movement to defeat Miers succeeds - and that prospect becomes more tangible every day - the chances are that the dems will be confronted with precisely what they don't want: an intelligent, qualified, articulate conservative jurist. Unlike when Clinton nominated Breyer, however, Dems will not give this nominee a pass, IMO.

Too Many Jims said...

I agree that if Roberts had said this they would have had a conniption. I think their relative silence is more telling than their opposition to Roberts. In the end, in addition to your argument that she will not be seen as an influential justice and may be subject to influence by more liberal members of the court, I think Dems (absent some bombshell) are keeping their powder dry in case they need to use it on a subsequent nomination.

Further, isn't perhaps the most important pro-"choice" Senator actually Specter? Do you think he will give her a pass?

While I too am troubled by Dems giving her a pass, it would be fair to note that in addition to the considerations above (i.e. Miers may be a weak justice or one that can be swayed) the Dems will undboubtedly face claims that they treat all of Bush's nominees unfairly. The talking heads who support her will say: "They did the same thing to Roberts/Estrada/Brown." Why should they stick their necks out when the people who most want her defeated are some of the talking heads who said the the same thing about them in prior nominations?

Gerry said...

Thanks for the reply, Ann. I buy that line of thinking completely.

Ann Althouse said...

Dave: I'm faulting Bush for the Miers nomination, but praising him for the Roberts nomination. It's not as if the politics is always at the same level. There's no long unbroken chain of pure politics. There is always some politics, and that is appropriate. But the President MUST choose a good judge from the pool of those who are politically acceptable to him. What he has done and what some Senators seem to be doing now is breeding disrespect for the Court, undercutting its role in the system. To go from the observation that the Court is not apolitical to the belief that the Court is only political is a terrible, destructive step. Both liberals and conservatives should resist this slide.

Ann Althouse said...

Jim: Specter has been trying his best to help her.

Ann Althouse said...

Let me add that in saying "the President MUST choose a good judge," I do not mean to say that he must choose someone who is already a judge.

Anonymous said...

I think the 1989 document doesn't prove anything about what Miers believes or how she would act as a justice. And both Dems and Reps know it.

She signed that document as part of an election bid. It was pure politics. She had been a democrat for most of the 80's and was looking to beef up her cred with the Right.

And the absence of any other evidence that she has ever made any effort to seriously effect law or policy away from the current status quo also undermines any sense of meaning one might attribute to the document.

Ann Althouse said...

Stranger: Is your point that Miers is just a big political hack? And that's supposed to support the view that she deserves to be a Supreme Court justice? Go ahead, make the hack defense. I'd love to hear it. Maybe Bush could use this idea for the next relaunch of the MIers nomination.

Dave said...

I certainly agree that the President, and probably all politicians, have some sort of implicit disrespect for the Court and its role in the country's affairs.

Too Many Jims said...


I know that Specter is doing his est at the task at the difficult job of helping her through this process. My point was that you suggest that Dems are disrepecting the independence of the judiciary by giving her a pass, a point with which I agree. However, I think Republican Senators are also demonstrating their disrepect by giving her a pass whether they are supporters of Roe (most notably Specter) or not.

Ann Althouse said...

Jim: I haven't focused on the Republican Senators here, and I think they have a basis to support Miers simply because she is the President's choice. And they supported Roberts. It's the Democrats that I feel I have caught in a contradiction. Attacking Roberts and then giving Miers a pass looks awful to me.

Anonymous said...

Ann -

I don't think she's a good nominee for the court. She's a mediocrity at best vis-a-vis judging the law. And her close personal/professional tie to the president is a non-starter even if she was Solomon.

My critique is of those who would imbue the 1989 document with the significance of a law review article or a history of cases participated in. It is not a document of her deeply felt convictions. It is not even her own writing. It is a form presented to her by an interest group of voters. She gave one word answers on this form. And she gave those answers during the brief time in her life when she pursued a publicly elected position.

But, if one insists on taking the form as a declaration of her deepest beliefs, then the absence of any other document or action to reinforce what she professed to believe on that campaign form leaves one underwhelmed by the force of her convictions (or at least her willingness to turn her beliefs into policy or law). So it still works against her from a conservative point of view, IMHO.

Henry said...

Even if Miers wasn't compromised on Roe (it's not like she can claim now that she's never thought about it, can she), the Democrats should be opposing her.

The recurring argument the Democrats have used against Bush's judicial nominees is the unwillingness of the White House to turn over pertinent documents. I'm aware that this is pure politics, but if the Democrats decide that it's okay for Miers to proceed without a paper trail, they are going to look like base hypocrites when they exhume that argument for the next nominee.

Ann Althouse said...

Stranger: I certainly agree with you that a pro-lifer should not feel that this survey assures them in the slightest that she would vote to overturn Roe v. Wade.

Adam said...

I did a little research on Thomas; for what it's worth, here are the two primary Human Life Amendment texts submitted before Congress in early 1989:

H.J.Res 91, introduced by Rep. Dornan, had 27 cosponsors:

"The paramount right to life is vested in each human being at the moment of fertilization, without regard to age, health, or condition of dependency."

S.J.Res 3, introduced by Sen. Garn, had 17:

"SECTION 1. With respect to the right to life, the word `person', as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biological development.

"SECTION 2. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.

"SECTION 3. Congress and the several States shall have the power to enforce this article by appropriate legislation within their respective jurisdictions."

skilletlicker said...

The Dems are having too much fun watching conservatives squirm over Meiers to start attacking her over this. Dems already know that she is an evangelical Christian so it's not exactly news that she opposes abortion. Republicans would give anything for the Dems to start laying into Meiers right now, and Dems know it.

Hans Gruber said...

Why make a fuss and piss off the evangelicals and pro-lifers when you can let the Republicans tear her down?

I think they're hoping to come out clean on this one. When another nominee comes forward, they'll have clean hands.

Ann Althouse said...

Hans: "Why make a fuss and piss off the evangelicals and pro-lifers when you can let the Republicans tear her down?"

To be principled and consistent.

Too Many Jims said...

If they were principled and consistent they wouldn't be politicians. Not that we shouldn't want that in our politicians . . .

Ann Althouse said...

Jim: It's my self-appointed role to point out when they are being inconsistent and unprincipled. The fact that is is to be expected is not a reason not to do it, but a reason to feel confident about the continued flow of material I need to keep blogging. Let them do their thing and I'll do mine.

Too Many Jims said...


I appreciate your role and enjoy that you engage it. Initially I did not see that as one of your primary points of this post but now I do. I am glad that they will continue to give you fodder to blog but a bigger part of me wishes they (politicians) would be more consistent and principled, freeing up your time to blog about other matters.

Undecided said...

You've asked a good question. Your answer looks pretty good too. But won't it look weird if the democrats on the Judiciary Committee don't press her hard about her views on Roe and/or a right to privacy? Isn't Ms. Miers now between a rock and a hard place by having expressed her hard-line views on abortion? She can't possible disavow the survey that she completed. I don't see how the Democrats can possibly give her a pass unless she basically says that she won't overturn Roe. But then the republican majority in the senate will skewer her. How will this all play out? Now, I see why stealth candidates, especially with regard to the abortion issue, are the norm for positions on the high court.

W.B. Reeves said...

It took more than twenty posts before Hans Gruber pointed out the obvious. There is absolutely no reason, political or strategic for the Democrats to wade into the Republican fratricide. The likely outcome of such a move would be to galvanize support for Miers along partisan lines. The Democrats are simply being smart.

This strikes some as unprincipled. Perhaps it would be, if this were an academic debate or a moot court proceeding but it's not. This is politics. Successful politics is first and foremost about results.

If the goal is the preservation of Roe, it's hardly principled to follow a political line that strengthens its opponents. Is anyone willing to argue that the current disarray on the Republican side is not weakening that opposition?

The intelligent move for Roe's supporters is to say and do nothing so long as the bloodletting continues. Once the smoke clears, it will be time to make a fresh assessment of the political landscape. Only then will we know how much of a pass the Democrats are willing to give Miers.

If I were a Democrat, I wouldn't give this criticism the time of day. I'd view it as a transparent attempt to embroil my party in a premature debate which would only serve the opposition's interests.

Some call it cynicism. I call it realism.

Ann Althouse said...

W.B.: If the actions of the Democrats imply a concession that it's all politics, they forfeit their ability to make the kinds of arguments they have made in the past and will want to make again in the future about how much they care about perserving the quality of the judiciary. Thus, it isn't politically smart.

W.B. Reeves said...


W.B.: If the actions of the Democrats imply a concession that it's all politics, they forfeit their ability to make the kinds of arguments they have made in the past and will want to make again in the future about how much they care about perserving the quality of the judiciary. Thus, it isn't politically smart.

That is an interesting line of logic. If I understand you correctly, you're suggesting that while Bush nominated Miers who, if confirmed, will be elevated at the behest of the President and his party, nonetheless it is the Democrats who bear the onus. This, by reason of their reluctance to interpose themselves between the warring factions of the GOP. Breathtaking to say the least.

As I see it, the main trouble with this line of thought is that it argues in advance of the facts. How many Democratic office holders have formally endorsed Miers? Have any actually done more than make temporizing statements, if that?

While it may be that silence implies assent, it doesn't specify what is being assented to. Is it Miers, or is it her critics?

You argue that if the Democrats do not immediately launch themselves into an assault on Miers' competence, they forfeit their standing to raise such arguments in future. Let's apply this principle generally.

If you don't denounce and actively oppose all injustice everywhere, 24/7, does that liquidate your standing to oppose a specific injustice? If a prosecutor does not pursue every case that would support indictment, if not conviction, does that deprive he or she of the standing to pursue any prosecutions whatever? If the police do not pursue every criminal infraction do they lose the standing to make any arrests at all?

In order for me to take your argument vis a vis the Democrats seriously, you would have to affirm all the above. Otherwise, I would want to know why this principle only operates against the Democrats re: Miers. In absence of a convincing explanation, I don't see this argument getting much traction outside of partisan circles.

The only way the Democrats could be damaged is if they were to ride to Miers rescue at confirmation. I don't think that likely. If Miers is confirmed, I believe it will be via the GOP majority or it simply won't be. If I'm wrong, then and only then will your prediction come true.

mario said...
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Charlton Glad said...
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