HomeHarriet MiersWill Miers oppose Roe v. Wade?Will Miers oppose Roe v. Wade? Kevin October 17, 2005 Harriet Miers, Supreme Court 21 CommentsJohn Fund, in The Wall Street Journal, says Christian conservatives have received assurances from two of Ms. Miers’s close friends – both sitting judges – that she would vote to overturn Roe. Kennedy assists in rescue of 6 Good thing the Oldsmobile was in the shop... Tags:court, harriet, Miers, supremeRelated PostsObama To Nominate Elena Kagan To Supreme CourtKyl and Kohl Play NicelyRoberts Hearing: Paris Hilton in the Congressional RecordAbout The Author KevinKevin founded Wizbang in 2003. He still contributes occasionally and handles all the technical and design work for the site.21 Comments McGehee October 17, 2005 Which would mean the Roe era ends as it began — as a result of a hyper-politicized Court.Will the one really be worth the other? George October 17, 2005 I agree that it began in a politicized court. But I believe it would be overturned in an apolitical court. OregonMuse October 17, 2005 Well, as a Christian conservative myself, I’m not sure I care all that much. How will she vote on affirmative action, federal intrusion on states issues, government regulatory cases, war on terror cases, etc.? There are bigger things in this world than Roe. Phinn October 17, 2005 This PR campaign to get Miers confirmed is digusting.We’ve spent decades explaining why the Court should be apolitical — that for the Court to interpret the Constitution on the basis of the justices’ personal policy preferences is an affront to the basic principles of our philosophy of government.Then, when the base turns against a nominee, what happens? We get a steady stream of wink-and-nod assurances that, yes, the nominee is political, and even better, she’s politically aligned with us.This kind of strategy to get her confirmed misses the point by about 180 degrees.Conservatives have been screaming for decades about the Democrats’ constant politicization of the Court. Their response, for decades, has been to say that we are not really principled originalist/strict constructionists at all, but that all we really want is to achieve certain set of political goals, and we use originalism as a pretense to do so.In other words, they accuse of of being just as rabidly political (and unprincipled) as they are when it comes to the Court, and our calls for strict construction (i.e., faithful adherence) to the actual Constitution is a lie.Now, here come supporters of Bush and Miers who play right into the Democrats hands, confirming every accusation they’ve ever made.I don’t care half as much for seeing Roe overturned as I do that it would be overturned FOR THE RIGHT REASONS.Those reasons extend far beyond the abortion issue. And I say this as someone who puts abortion at the top of the list of Constitutional atrocities commmitted by people we trusted to safeguard our legal principles.Don’t they get it? I’m willing to hold my nose and vote for some politician whose views I dislike on some issues in order to get someone in office who agrees with me on other, more important ones.But Supreme Court justicies are not supposed to be politicians, for Christ’s sake! The soundness of their reasoning is why they wear the black robes and get to decide issues in the first place. It’s what gives them credibility.Saying “she’ll overturn Roe”, but without showing me that she’s an originalist in all respects, does more to undermine that credibility than it does to bolster it. Hearing that gives me less cause to support her nomination now, if such were possible. JEW October 17, 2005 So just what would be the PROPER WAY to overturn Roe? We now know that the facts (really lies, wink, nod, snicker) were presented to impartial judges (actually politicized wink, nod, snicker)court and that they should have the final say and it should not be overturned (wink, nod, snicker)by a politisized court. Phinn October 17, 2005 So just what would be the PROPER WAY to overturn Roe?By holding that there is no basis for it in the federal Constitution.To reach that conclusion, one must first read the Constitution.But to do be motivated to do that, one must first be committed to enforcing the Constitution as it is actually written, not as one would prefer it to have been written.But to be willing to do that, each justice must first accept the limits of the Court’s power, and rid him/herself of the lust for more power than has been delegated to them.Show me that Miers is willing to stand for these principles, and I’ll support her.I won’t become like the Democrats just to defeat the Democrats. I refuse to use their methods and tactics, when it is that very use of such methods and tactics that made them my political enemies in the first place. Radical Centrist October 17, 2005 Could someone expain the process by which roe could be overturned? McGehee October 17, 2005 Somebody sues in federal court claiming that the decision, reached in 1973, is itself unconstitutional (preferably on the basis of subsequent U.S. Supreme Court rulings, the logic of which when applied to the issue in Roe leads to a decision unlike that written in ’73 by then-Justice Harry Blackmun).It works its way to the U.S. Supreme Court, and they come up with five or more votes to overturn.If Miers has pre-pledged to overturn Roe — which I’m not convinced is necessarily true — then she is most definitely unqualified to sit on the Court.Just as is any nominee who pre-pledged, as the Democrats constantly demand, to uphold Roe. Radical centrist October 17, 2005 McGhee: Could just anybody off the street sue? Don’t they need something more than claiming it’s unconstitutional? I thought it would be more along the lines of a municipality enacting a law that would curtail abortion in some way, then wending it’s way to the SC. Flakbait October 17, 2005 Well, one, the constitution could be ammended via popular referendum through Congress or by state legislatures through congress such that abortion is once again legal. This is not particularly desirable, as can be seen the LAST time someone tried social-engineering-by-constitution with prohibition.Two, have a case concerning abortion to come before the supreme court and have a majority of justices vote and write opinions in such a way that Roe v. Wade is struck down (i.e. find that there is no constitutional right to privacy or somesuch).I personally don’t think that any of this means that Meiers is particularly politicized in and of itself. Let’s be realistic– politics and how one interprets the constitution are intertwined.If one believes that the constitution should be read in the mindset of “what did the founders mean when they wrote this,” and “what does the constitution say, exactly” chances are, one is going to be pidgeonholed as a conservative. And that means that such a person will naturally view the legal flim-flam that resulted in Roe v Wade as erroneous and in need of overturning.If a judge, on the other hand, tries to find amazing new rights that didn’t apparently exist in the actual text but hey, we feel like putting it in? Probably a big-L-Liberal, and will probably think that Roe V Wade is a-okay.So assuring the base that Meiers is anti-roeVwade is simply a statement that she prefers the constitution like I prefer my steak– dead and well-aged. Now, if the white house starts saying that she’s going to rule in favor of low taxes, THEN we’re drifting into “definitely political” territory. DaveD October 17, 2005 I have a question (OK, questions) for anyone. During the Roberts nomination, John Roberts stated that he would consider long standing precedent from prior Supreme Court decisions to guide his own deliberations. I guess that would have ameliorated the apprehension the pro Roe v. Wade proponents had toward his nomination. Well, ironically, his predecessor in his dissent of the Roe v. Wade ruling wrote that the Court was ignoring long term legislative precedent from the various States’ laws that did put restrictions on abortion. So did the Roe v. Wade ruling overturn all of those State laws outright? Does the crux of the argument today hinge on a woman’s “right” to abortion beyond the 1st trimester? It seems many of the State laws on the books prior to the 14th amendment permitted abortion in the first trimester. Finally, when States write legislation attempting to outlaw partial birth abortions, where does the ongoing conflict remain with the judiciary? I apologize for my ignorance, but I feel I have never been completely clear on the clarity of the arguments. JEW October 17, 2005 So it sounds to me that Miers cannot in and of herself overturn Roe. That it would take legal action and a justice system along with a majority of the court to overturn Roe.Hmmm, interesting to hear everyone talk Meirs could do this all by herself. JEW October 17, 2005 DaveD hits on a point I have pondered for quite some time but never brought up, “States Rights”.I believe Roe and a host of other rulings could be brought before the court via lawsuits because the Federal Government has overstepped its authority. Buford_clyde October 17, 2005 I don’t care what she believes as long as she rules according to OUR Constitution and foreign laws. OregonMuse October 17, 2005 And not only can Miers all by herself overturn Roe, she is not going to be able to do it with help. At most there are four votes to overturn Roe: Scalia, Thomas, Miers, Roberts. When all is said and done about the Miers nomination, we’re left with what we started with, a 5-4 court. Phinn October 17, 2005 Let’s be realistic– politics and how one interprets the constitution are intertwined.This is completely false. Only someone who has already swallowed the fundamental Left-liberal attitude toward law and government would believe this.The Constitution says what it says. Its meaning is known and knowable. Sure, there are some minor ambiguities here and there. But today, there is an army of academics and advocates who openly declare that the Constitution doesn’t actually say what it says, and that it can say whatever we want it to say. These power-hungry dictator-apologists don’t even bother to ascertain its actual meaning.They even have a term for it — the “living Constitution.” That sounds nice, but it’s just a propaganda term for what is really going on — they change the law in the courts because they cannot enact their agenda through the democratic process. They cannot get the votes to amend the Constitution, so they amend it from the Court, by fiat.There are a lot of things about the Constitution that I would love to change if I had a magic pen. But I don’t. More importantly, no one does.We should expect our government officials to have enough decency and integrity to enforce the law as it is actually written, not as they would like it to be. Oh, FTLOG October 17, 2005 Does anyone really think that she hasn’t passed the ultimate test regarding her beliefs on abortion….support from the almighty himself – Dr. James Dobson?!Can someone honestly and seriously explain why this man’s opinion is so relevant as to effect the policies of our government? JEW October 17, 2005 I don’t care what she believes as long as she rules according to OUR Constitution and foreign laws.I agree wholeheartedly with all but the last three words of that statement, which I vehemently reject. Maybe you meant “and not foreign laws.” McGehee October 17, 2005 McGhee: Could just anybody off the street sue? Don’t they need something more than claiming it’s unconstitutional?Anyone who can convince a federal court that he or she has standing to sue and has suffered some form of harm, can challenge the constitutionality of anything in what passes for constitutional law.That’s how Michael Newdow got as far as he did with his Pledge of Allegiance lawsuit — only to find that SCOTUS didn’t share the lower courts’ view of his standing.States and municipalities have been taken to court over attempts to regulate abortion ever since Roe was handed down. jpm100 October 17, 2005 Which would mean the Roe era ends as it began — as a result of a hyper-politicized Court.Will the one really be worth the other?Actually it belongs kicked back to Congress.I’d like to see those gutless turds try to pass some real legislation for a change. Although I disagree with Bush on many things like the Miers nomination, but at least he acts and is willing to take his lumps for acting. I’d like Congress to stand up and start doing their job for a change.The SC is only filling the vacuum Congress is allowing. jpm100 October 17, 2005 Via Patterico’s Ponifications, this link recants how many assumed Anthony Kennedy would oppose Roe.