Harriet Miers's faith tells us nothing about how she would rule.
Sunday, October 16, 2005 12:01 a.m. EDT
The world will learn a lot more about Harriet Miers in coming weeks, so we're not going to join the pack already chasing her back to Texas. But one strategy that the White House would be wise to drop is its not-too-subtle promotion of both her religion and her personal views on abortion.
In case you haven't heard, Ms. Miers is an evangelical Christian who is personally opposed to abortion. A main White House talking point is that she fought to reverse the American Bar Association's position supporting abortion rights. We are supposed to believe--wink, wink--that this means Ms. Miers is a judicial conservative who would oppose the likes of Roe v. Wade. The National Right to Life Committee has already endorsed Ms. Miers. And James Dobson of Focus on the Family endorsed her because, he said, "I know the individual who brought her to the Lord" and because "I do know things that I am not prepared to talk about here [on TV]." (He later said the White House hadn't given him assurances about how she'll vote.)
We'll concede that Mr. Dobson's sources upstairs are better than ours. But whatever he knows, if it concerns Ms. Miers's religion it doesn't tell us anything about how she'll rule on the Supreme Court. Allow us to recall the case of Anthony Kennedy.
In 1987, following the defeat of Robert Bork and the withdrawal of Douglas Ginsburg, President Reagan was contemplating his next appointment. On the short list leaked to the media were Laurence Silberman and Mr. Kennedy, both then appellate court judges. Judge Silberman was a well-known judicial conservative, but some right-to-life activists worried that he might be personally pro-choice on abortion.
Judge Kennedy, on the other hand, was something of a blank judicial slate. But he was a Roman Catholic who let everyone know he was personally opposed to abortion. "The right-to-life people were solid behind Kennedy," the San Francisco Chronicle quoted one conservative as saying at the time. "They were gung-ho for him."
Conservative Senator Jesse Helms had doubts, however, so Judge Kennedy met him in a private room at the White House that November. According to columnist Cal Thomas, Mr. Helms said to Judge Kennedy, "I think you know where I stand on abortion." Judge Kennedy "smiled and answered, 'Indeed I do and I admire it. I am a practicing Catholic.' "
Mr. Thomas recounted that "Judge Kennedy did not elaborate, but Mr. Helms interpreted the response to mean that Judge Kennedy is opposed to abortion and would look favorably on any case in which the Court's earlier decision striking down the abortion laws of all 50 states might be overturned." Reagan nominated Mr. Kennedy, who dodged the abortion issue at his confirmation hearings. Mr. Helms voted for him.
And we know how that turned out. Justice Kennedy continues to be a devout Catholic, as most recently described in a profile in The New Yorker. But he was also one of the three Republican-appointed Justices who fortified Roe in Planned Parenthood v. Casey in 1992. More important for the future, he has been a leader on the Court in citing foreign precedents to justify overturning American laws (e.g., the juvenile death penalty), and he has expanded the "right to privacy" to overrule just about any state law he doesn't like.
Meanwhile, whatever Judge Silberman's personal views on abortion are, no one familiar with his judicial record doubts that he would have voted to overturn Roe in a New York minute. To put it bluntly, the right-to-lifers let religion and personal views on abortion color their judgment about Judge Kennedy, and they bamboozled themselves.
In recounting this history, we aren't equating Ms. Miers with Justice Kennedy. We have no idea what Ms. Miers thinks about Casey, or any other Constitutional issue. The point is that what matters aren't Ms. Miers's personal views on abortion or what church she attends. What matters is what she thinks about the judiciary, and specifically whether she believes it has the limited, Constitutional role that the Founders intended. The White House could help its credibility if it focused on that question and stopped touting her religious beliefs.
opinionjournal.com |
