Courting Disaster? Why Many Conservatives Think That Someone So Right Could Be So Wrong | Valerie Schmalz | October 21, 2005

Is Harriet Miers going to make it to the U.S. Supreme Court?

It’s a roll of the dice at this point, as Miers takes hits from the left and from the right. Her religious beliefs and her past positions on abortion are drawing criticism and skepticism from Democratic abortion rights supporters Senators Dianne Feinstein and Patrick Leahy, as well as from Kansas Republican Sen. Sam Brownback.

It could be a lethal combination.

"I think the hearings will be very important for this nominee," said Brownback in a conversation with IgnatiusInsight.com.

"I wonder if she is not going to have to at some point pull out," said Dr. James Hitchcock, author of The Supreme Court and Religion in Public Life, and a professor of history at St. Louis University. "I tend to hope that maybe she will withdraw. I think if not it’s going to be a bloody mess because the liberals are going to see her as highly vulnerable."

Brownback, one of the strongest pro-life votes in the Senate and a potential presidential candidate in 2008, came out shortly after the October 3rd nomination of Miers with questions and continues to publicly withhold judgment. When asked if he would recommend that President George W. Bush withdraw Miers’ nomination, Brownback did not flatly reject the idea.

"I doubt that’s going to happen," he said. "That’s not our role in the process. It’s his to nominate and ours to vote up or down.

"If the president decides to do that, that’s his call but I really think ours is to really give a fair appraisal to the nominee," Brownback said.

With the Senate Judiciary Committee confirmation hearing set for November 7, Committee chairman Arlen Specter announced on October 19^th that he had sent Miers’ preliminary questionnaire back to her for more extensive answers. Pro-abortion rights Republican Specter and Leahy criticized Miers for answering "no" to a two-part question relating to whether she or anyone speaking on her behalf had guaranteed her position on Roe v. Wade.

An October 17th column by John Fund in the Wall Street Journal reported that on the day Miers’ nomination was announced Focus on the Family founder James Dobson and other religious conservatives held a conference call to discuss the nomination. During that call, two sitting judges who are friends of Miers reportedly said that Miers would vote to overturn Roe v. Wade.

Miers had also filled out a question at one point saying she supported the Human Life Amendment although she said it was in a different context.

On the other hand, Miers reportedly said that she believes there is a right to privacy in the Constitution, a basic underpinning of the Supreme Court's landmark abortion ruling Roe v. Wade. "Nobody knows how I would rule on Roe v. Wade," Miers said, according to Sen. Charles Schumer, D-N.Y., a pro-abortion rights member of the Senate Judiciary Committee.

"I think everything is going to depend for Harriet Miers on her performance at the hearings, especially on the first day," said Dr. Robert George, Princeton University McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions. "If she comes across as intelligent, well-informed, as someone who is determined to execute this high judicial office at the highest possible standard–she’ll probably win the overwhelming support of the Republicans and the support of enough Democrats to get through."

George said, "I suspect if she does an impressive job early on in the hearings the Republicans will take the view that while perhaps not the best appointment the president could have made, it’s a good appointment that they should support."

"Of course, in the meantime, anything could happen," George added. "We’re still learning information, there could be revelations that increase the suspicion in which she’s held by a great many conservatives–especially social conservatives–so that’s unpredictable."

Hitchcock is less sanguine. "I think there’s probably going to be sufficient suspicion on both sides that there is a real possibility that she would get rejected by a strange kind of bipartisan coalition," he said.

George said he is withholding judgment on Miers because he doesn’t know anything about her, although he is disappointed that Bush did not nominate one of the strong originalist judges on the federal appellate bench, including Janice Rogers Brown, Edith Jones, Edith Clement, and Michael Luttig, or Michael McConnell, who is a law professor at the University of Utah.

Defending Miers on October 20^th, President Bush said: "She will strictly interpret the Constitution. I said that when I ran for president. I said, ‘If you elect me, I will name people that will have that judicial philosophy.’"

"When I first heard the announcement I was surprised and disappointed," said Bernard Dobranski, dean of the Ave Maria School of Law in Ann Arbor, Michigan. "But then I thought, well, the president deserves the benefit of the doubt here, a presumption in his favor."

Dobranksi said Bush is concerned about his legacy and sees his Supreme Court appointments as key to how history will perceive him. Dobranski also said, "This president has been very forthright in his commitment to life" particularly in his appointments of judges at the appellate level. "Brilliant men and women, absolutely committed to the Constitution and most with an explicit commitment to life."

Dobrankski, Hitchcock and George agree that the insertion of Miers’ religious belief into the process has muddied the waters. "It’s a reasonable question," said Dobranski, "but it’s not something that’s going to come up in the hearings. It’s something I ask myself. I feel really conflicted about this. I wish he hadn’t done it."

"When the president started getting criticism, then the defense was she was a very devout Evangelical. You don’t justify an appointment of someone to an office based on their religious belief," said Hitchcock.

"The correct approach is to say that Roe v. Wade was a bad decision. We protect the life of the unborn because it is part of the overall right to life," Hitchcock said. "Now I think she has been maneuvered into the position of people saying she will implement her own personal religious beliefs. Now she’s an open target. It’s so unnecessary."

The test for faithful Catholics in judging whether a nominee to the Supreme Court should be supported is not what their religious beliefs are but how they view the Constitution, said Dobranski.

"The problem with our Supreme Court is it doesn’t accept core principles," said Dobranski.

"Somebody has to have the right judicial philosophy. The term most people use for that is ‘originalist’," Dobranski said. Those are "people who interpret the Constitution in terms of the original understanding of it when it was drafted." And when society changes, amendments to the Constitution add to the text of the Constitution, Dobranksi said. "I worry about looking at personal views."

"How should Catholics think about the issue of judges?" George asked. "They shouldn’t ask, ‘Is the person Catholic?’ They shouldn’t ask, ‘Would the judge be good for the Catholic Church?’ The question is not Catholicism as such–it’s the common good."

George said the common good is served by judges who enforce the rule of law based on the text of the Constitution. "We need judges who will stick by the rule of law, who will abide by the Constitution. That’s all Catholics should ask."

Hitchcock, George and Dobranski said that justices who are chosen based on their religious or moral values without a firm judicial philosophy grounded in a solidly thought out intellectual framework could be subject to the shifting winds of opinion and the allure of belonging to the country’s intellectual and political elite. Dobranski cited Anthony Kennedy, chosen in 1987 after both Robert Bork’s and Douglas Ginsburg’s nominations were withdrawn. Senators were assured Kennedy was a believing Catholic, but he has proven to be a solid vote in most cases for the right to abortion.

A major litmus test for both the right and the left in American politics is Roe v. Wade. For pro-abortion rights advocates in the Senate, a key issue is "privacy"–a right found in the constitution for the first time in the 1965 case, Griswold v. Connecticut, which invalidated a Connecticut law prohibiting the use of contraception by married couples. That was later expanded to unmarried people and then, in 1972, the same reasoning was applied in Roe v. Wade.

"The liberals aren’t worried about people being Catholics. They are worried about them being good Catholics," said George. "If they’re good Catholics, they’ll be prolife. If they’re good Catholics, they’re probably inclined to see the Constitutional pretty clearly and to see there is not a right to abortion in there and the Supreme Court has simply manufactured one."

Related IgnatiusInsight.com articles:

• The Supreme Court’s Penumbra of Politics | James Hitchcock
• Ordeal by Ideology: The Grilling of Judge Roberts | James Hitchcock
• The Myth of the "Wall of Separation" | James Hitchcock
• Just Judges? | James Hitchcock

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Valerie Schmalz is a writer for IgnatiusInsight. She worked as a reporter and editor for The Associated Press, and in print and broadcast media for ten years. She holds a BA in Government from University of San Francisco and a Master of Science from the School of Foreign Service at Georgetown University. She is the former director of Birthright of San Francisco. Valerie and her wonderful husband have four children.

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