Harriet Miers, Roe & the Grassroots Pro-Life Movement
Today, as pro-lifers, we have more questions than answers about Harriet Miers, President Bush’s Supreme Court nominee. The evidence strongly suggests that she is pro-life and believes that abortion kills a human being is therefore wrong. For most government positions we would wholeheartedly support a candidate with her background. But is it enough for a Supreme Court nominee? There are many folks (according to public opinion polls) who believe abortion is murder, but just the same, do not think abortion can or should be made illegal. Justice Sandra Day O’Connor never favored abortion but yet was unwilling to overrule these cases. Even Judge Hecht, Meirs’ longtime friend, said: “You can be just as pro-life as the day is long and can decide the Constitution requires Roe”. (New York Times, 10/5/05)
For a Supreme Court justice, being opposed to abortion is only a first step. The real question has to be whether or not she thinks the United States Constitution includes a right to kill children through abortion. In other words, for her to be a good nominee, she must also believe that Roe v. Wade & Doe v. Bolton were wrongly decided and should be overruled.
So where does that leave us with Harriet Miers? There is no evidence that she have ever expressed a view on Roe and Doe. We will not find this out from her confirmation hearings. If she is someone who believes in the rule of law, and that personal views do not have a role to play in judicial analysis, (just like Chief Justice Roberts) then her personal view of abortion means nothing.
We have yet to discover what it would take for her to overrule any Supreme Court precedent. What set of conditions will she tell the Senate Judiciary Committee must exist before she would overrule a precedent? By her answers (if she answers) we will know what burden of proof we will bear in convincing Harriet Miers to overrule Roe. There will be no clear answer, only a possible roadmap.
So we can make no conclusion about this nominee.
That leads us to the question of why we even have a nominee whose position about Roe and Doe is uncertain. How does the failure of President Bush to nominate someone who is clearly in favor of overruling Roe affect the likelihood that an overruling decision will be made? The first question that must be asked is whether the failure of political leaders, particularly the President, to openly endorse an overruling decision makes is more difficult for the grassroots pro-life movement to convince the public of the validity of this message.
The next question is whether we made a mistake to fight for this President last year. If you ask any pro-life activist why they worked for George W. Bush in last year’s election, they will tell you that they worked and fought and sacrificed so that anti-Roe justices would be nominated for the Court. Not for more regulations, but so that - at long last - the poison and tyranny of Roe could end and the American people would be able to determine abortion policy and decide where the unborn child fits in the human family.
But President Bush has never, as far as I’ve been able to determine, expressed his opinion on the morality or legal credibility of Roe and Doe. Not only did he never promise an anti-Roe nominee, he never expressed his own view of these cases. In fact, after the 2000 election, he expressed the view that the country was not ready for Roe to be overruled. Does this mean that he would oppose an overruling decision? Probably not. But perhaps we should take seriously what he did say- and understand that his two nominees are a reflection of his real belief that the time is not yet right for an overruling decision. He has nominated pragmatists who are probably pro-life, but also probably not yet ready to overrule. This, I believe, is what the President believes the correct policy to be. I do trust George Bush to do what he believes is right. Unfortunately, most pro-lifers would not agree with his conclusion. We are ready to have Roe and Doe overruled and we can be ready for the battle for our democracy that will follow.
Either this explains Roberts & Meirs - or the President is just trying to avoid a fight.
How should we respond? We can conclude that our hopes of overruling Roe and Doe are dashed for a generation by nominees who value precedent over a correct interpretation of the United States Constitution. Or we can work to reclaim our culture and provide a real foundation for an overruling decision that even Chief Justice Roberts and nominee Meirs can’t evade. I vote for the latter.