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Bye bye, Harriet

Posted by Richard on October 27, 2005

Harriet Miers is out:

WASHINGTON — Harriet Miers withdrew her nomination to be a Supreme Court justice Thursday in the face of stiff opposition and mounting criticism about her qualifications.

President Bush said he reluctantly accepted her decision to withdraw, after weeks of insisting that he did not want her to step down. He blamed her withdrawal on calls in the Senate for the release of internal White House documents that the administration has insisted were protected by executive privilege.

I suspect the withdrawal had more to do with reaction to some speeches she made in the early 1990s. Miers was portrayed by the White House as a strongly conservative, strongly anti-abortion evangelical Christian, and Christian conservatives, led by Dr. James Dobson, were the group most solidly behind her. But yesterday’s reporting about one speech in particular may have threatened that support:

In a speech given in the spring of 1993 to the Executive Women of Dallas, Miers appeared to offer a libertarian view of several topics in which the law and religious beliefs were colliding in court.

"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," Miers said.
Cass Sunstein, a constitutional law professor at the University of Chicago Law School, said that while the words left room for varying interpretations, "one possible reading is that she believes you should basically give liberty the benefit of the doubt and that when moral issues are disputed and scientific evidence is unclear, government should stay its hand."

Now, that’s bound to disturb Dobson and the Operation Rescue people, but it sounds pretty good to me, a "pro-choice on everything" libertarian. In fact, if presented in isolation, it would greatly enhance my opinion of Miers.

Unfortunately, it wasn’t presented in isolation. We already knew that she’d said very different, very anti-abortion things on other occasions (I believe both before and after this speech). So, either her thinking on this issue has been all over the map or she’s tailored her message to whatever audience she was addressing, saying one thing to evangelical Christians and another to a business women’s group.

The rest of the speech further lowered my opinion of her. The entire speech is available in PDF form — it’s a low-resolution scan, not text, so I won’t quote at length. But Miers spent much of the speech arguing that, in a variety of matters from school funding to low-income housing, the courts were "forced" to step in and legislate from the bench because elected officials didn’t make "decisions that really need to be made" that were "hard and unpopular." She summed up her point this way (ellipsis and sentence fragment in original):

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.

So according to Miers, when a judge mandates a specific level of education spending or orders the legislature to increase taxes, that’s justified because the legislature didn’t defy the will of the people and do on its own what the judge subsequently ordered. And she’s supposed to be a nominee in the mold of Thomas or Scalia?

The speech also included a plea for a state income tax and a John Edwards-like "two Americas" section about haves and have-nots, unequal justice, and discrimination "seated in economic concerns–minimizing the number who are able to participate in the slicing of the pie." This is supposed to be an intelligent, principled conservative? That sounds like the standard liberal mythology: economics is merely a distribution problem, a fixed pie is simply a given, and we don’t need to think about how the pie is produced or how to make it bigger.

Since she’s withdrawn, there’s no point in belaboring the issue, but I must say this one speech made me wonder not just about her values and beliefs, but about her ability to communicate intelligently and effectively. Consider just this sentence:

The necessary continued requirements by the Courts for progress frequently has the effect of hardening feelings and slowing the process and in my view the ultimate benefit of a society whose wealth is diversity and who pulls together against common enemies.

What can I say? That’s simply embarrassing.

I’m glad she’s withdrawn, and I just hope this leads to a better outcome. As regular readers know, I’m a huge fan of Janice Rogers Brown and would love to see her nominated and confirmed. I know less about some of the other "proven" originalist / strict constructionist candidates, such as Luttig, McConnell, and Owens.

At this point, I want two things: First, Bush had better nominate someone like Clarence Thomas, not Gonzales or someone like him. Second, the Senate Republican leadership had better deliver the votes to confirm a Thomas-like originalist candidate, including the votes to end a filibuster if it comes to that.

UPDATE: Reaction is everywhere, of course. The California Conservative has lots of links. So do Decision ’08 and Michelle Malkin. See also Stop the ACLU, The Political Teen, and Basil’s Blog. And PunditGuy has links to coverage and commentary across the political landscape and throughout the MSM.

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