Ethics & Public Policy Center

Miers's Muddle

Published in National Review Online on October 26, 2005

With the understanding that Harriet Miers’s Spring 1993 speech to the Executive Women of Dallas is just part of the evidence that has led me to conclude that she should withdraw her nomination, let me highlight the elements of that speech that I find disturbing.

Much of the first ten pages I find unobjectionable in substance (though certainly not well composed). Indeed, Miers soundly criticizes “a shifting to the judicial system of the responsibility for making all of the hard decisions” and the unwillingness of political leaders to make these decisions:

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.

No quarrel from me on any of this. I would have preferred that she make clear that political abdication does not ipso facto justify judicial intervention, but that could fairly be seen as tangential to her “basic message.” There are propositions in these first ten pages that are sloppily stated or that suggest a failure to make important distinctions (such as the description of Dallas as “basically segregated”) or that would seem to mark Miers as a political liberal, but they don’t speak meaningfully to Miers’s judicial philosophy.

The part of the speech I find disturbing is on two pages near the end (specifically, the pages stamped WH3-05192 and WH3-05193). On the topic of “law and religion,” Miers wrote: “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.” This tendentious framing of what is at issue in the abortion debate — and its utter obscuring of the appropriate roles of the courts and the political branches — would appear to come straight from Planned Parenthood.

But it gets worse. One year earlier, five justices in Planned Parenthood v. Casey had absurdly declared that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” and had thereby claimed for themselves a roving mandate to determine which particular interests should be beyond the bounds of American citizens to address through legislation. Referring to issues of “law and religion” (which, again, Miers somehow saw as encompassing abortion), Miers appeared to embrace Casey’s judicial power grab:

The underlying theme in most of these cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes the most sense. Legislating religion or morality we gave up on a long time ago.

The muddle-headedness of this passage is breathtaking. For starters, Miers’s discussion is entirely oblivious to the fundamental constitutional question whether the courts or the political branches are the proper entities to accord respect to the value of “self-determination.” Nor is it clear (unless one adopts a Flat Earth version of embryology) how the principle of “self-determination” has any application to the “other-termination” that inheres in abortion. And her lumping of legislating religion and legislating morality, her argument that “we gave up on [legislating morality] a long time ago,” and her evident assumption that her argument has any bearing on abortion are, shall we say, not carefully considered.

But it gets even worse. Here is the crescendo Miers builds to:

Where science determines the facts, the law can effectively govern. However, when science cannot determine the facts and decisions vary based upon religious belief, then government should not act. I do not mean to make very complex, emotional issues too simplistic. But some of these issues do not need to be as complicated as they have become if people deal with each other with respect and even reverence.

What can this jumble possibly mean? Science, for example, cannot determine the facts that make it wrong to kill human beings, and adherents to different sets of religious beliefs can and do reach different decisions on the question. Just ask Osama bin Laden. Does it follow, then, that government should not outlaw murder? Miers’s false and confused division of the world into scientific facts and “decisions … based upon religious belief” does not treat religious believers “with respect and even reverence.” Rather, it tells them that they are uniquely disabled from pursuing their morally reasoned visions of just public policy in the public square.

Perhaps Miers didn’t mean, or no longer means, what she said. Her writing is sufficiently opaque that I may well have misunderstood her. But her comments reflect such a profound confusion, and such an inattention to the respective roles of the courts and the political branches, that they call seriously into question her fitness for the Supreme Court.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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