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10/27/05 What we don't know... Harriet Miers today withdrew her nomination for the seat on the United States Supreme Court being vacated by Justice Sandra Day O'Connor. Conservatives who opposed her nomination are doubtless already crowing that they were right and Bush was wrong. If only that were true. Some of Miers words came back to haunt her yesterday. In the early nineties, she was clearly a politician and she acted like one: she crafted her rhetoric so that varying audiences could believe she supported their causes. She made comments such as the following (taken from an article and the texts of a 1993 speech to a women's group and a speech entitled "Women and Courage" linked there yesterday in the Washington Post online): "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." Notice that she does not indicate the position she takes in the debate. This left her enough wriggle-room that she could possibly have argued in a hearing that her view is not expressed. And that would be true. But the fact that she used the rhetoric of the left in making the statement makes it possible to infer (whether accurately or not) that her view was pro-abortion. She made comments about the courts' role that are disturbing to many conservatives, but in context they do not tell us much. A recent referendum on school funding had failed, and she lamented the fact that lawmakers seemed not to have invested much effort in passing it. The issue that was prominent in the speech was the fact that there were hard decisions that had to be made (implying they were constitutionally mandated in Texas) but they lawmakers would not make them, but leave them to the courts. She wrote: "officials would rather abandon to the courts the hard questions so they can respond to constituents: I did not want to do that -- the court is making me." The statement is true. What are the other issues to which it might it apply? It is impossible to say. She apparently believed, as both speeches indicate, that the legislature needed to enable greater integration of the society in Texas, both economically, educationally, and racially, and believed the legislature was leaving much of the work to the courts. It would require an examination of the Texas Constitution to determine whether this was an advocacy of judicial activism or a quest for fairness under existing requirements. She made equally equivocal remarks about the idea that "self-determination" was important in many cases and that "when science cannot determine the facts and decisions vary based upon religious belief, then government should not act." This does not indicate that this is her position on all issues, only that people would "do well to remember" these points in making such arguments. Nothing in either speech is unequivocal. But Miers and perhaps the President have probably concluded that they raise too many doubts to make her nomination sustainable. This will be fine if we get another Justice who would be as judicially conservative as Miers would have been (that is one unknown upon another). It will be a tragedy if she would have been more consistently conservative than the supposedly "known quantity" who may be nominated next. Remember that David Souter was a known quantity, and even reliably conservative for three years or so. But since then he has marched to the left. This could not have been predicted. And if it happens again we will have occasion to wonder whether Miers was a better nominee after all. Hopefully we won't have to ask that question, but only time will tell (and not the assurances of conservative pundits who won't be held responsible if things do not turn out as they so confidently assert they will with another nomination). Modified: 11/02/2005 |
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