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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?
Its 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 its going
to be a bloody mess because the liberals are going to see her as highly
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 thats going to happen," he said. "Thats
not our role in the process. Its his to nominate and ours to vote
up or down.
"If the president decides to do that, thats his call but I really
think ours is to really give a fair appraisal to the nominee," Brownback
With the Senate Judiciary Committee confirmation hearing set for November
7, Committee chairman Arlen Specter announced on October 19th
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
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.
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 standardshell
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, its a good appointment
that they should support."
"Of course, in the meantime, anything could happen," George added.
"Were still learning information, there could be revelations
that increase the suspicion in which shes held by a great many conservativesespecially
social conservativesso thats unpredictable."
Hitchcock is less sanguine. "I think theres 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,"
George said he is withholding judgment on Miers because he doesnt
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 20th, 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
"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. "Its
a reasonable question," said Dobranski, "but its not something thats going to come
up in the hearings. Its something I ask myself. I feel really conflicted
about this. I wish he hadnt done it."
"When the president started getting criticism, then the defense was
she was a very devout Evangelical. You dont 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 shes an open target. Its 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 doesnt 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 shouldnt ask, Is the person Catholic?
They shouldnt ask, Would the judge be good for the Catholic
Church? The question is not Catholicism as suchits the
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. Thats
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 countrys
intellectual and political elite. Dobranski cited Anthony Kennedy, chosen
in 1987 after both Robert Borks and Douglas Ginsburgs 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 arent worried about people being Catholics. They
are worried about them being good Catholics," said George. "If
theyre good Catholics, theyll be prolife. If theyre good
Catholics, theyre 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."
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Related IgnatiusInsight.com articles:
Courts Penumbra of Politics | James Hitchcock
Ideology: The Grilling of Judge Roberts | James Hitchcock
The Myth of
the "Wall of Separation" | James Hitchcock
| James Hitchcock
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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