28 October 2005

Miers Withdrawal a Good, If Ungraceful Thing

Harriet Miers and President Bush have to be applauded for finally doing the right thing. Although conservative commentator and Law professor Hugh Hewitt complains in today’s New York Times that Miers’ withdrawal of her nomination for the Supreme Court was an outrageous act of sabotage by other conservative commentators—he specifically accuses National Review—there was little doubt left that Ms. Miers was not the right choice for this seat.

One can come up with many reasons to reject Ms. Miers. Some right-wing Christians have complained about her unknown stance on abortion but we should ask whether that would be a fair reason to reject her. I have advocated that a nominee’s stance on abortion should be an important litmus test and I will stand by it. Abortion is abominable and should be recriminalized. However, this discussion should be embedded in a thorough view of constitutional law. After all, if we want a safe anti-abortion activist on the court we might as well nominate James Dobson. We have no doubts about his position.

Thus, the complaint that Ms. Miers was fuzzy on abortion is not good enough. What we really need to know is a nominee’s views on the way US law, and especially the Consitution, works. Mere opposition to abortion is not good enough. What we need to see is a developed legal opinion about the Supreme Court precedents that caused the legalization of a practice that kills unborn people. Abortion is an outrage, but there is a second, separate outrage that should teach us something about the anti-child forces that advocate special rights for women to kill their babies. This outrage is that pro-choice activists and politicians are willing to ignore the plain words of the Constitution in order to invent these special rights. In other words, I am charging that you can only support legal abortion if you are willing to throw out US law and make the Constitution inferior to special rights for women.

Thus, what we need in a new nominee is a candidate who can see through these legal implications. That means that we should not expect any candidate, to mix some metaphors, to put his or her head in the noose before the pack of wolves known as the US Senate and proclaim to be anti-abortion. But it does mean that we have a good compass to navigate on, with plenty of leeway to find out where the nominee stands on abortion without asking him or her. It also means, however, that the nominee should be comfortable operating on the knife-edge between politics and sound judicial practice.

Ms. Miers was not that candidate. She is undoubtedly a smart women with many credentials but not the judicial credentials she would have needed as an Associate Justice on the Supreme Court. I agree with Hewitt about the disgraceful and ungraceful way she was brought down by another pack of wolves, the (religious) right. No Christian has a right to use slander and lies to destroy a person’s reputation (Ninth Commandment, Sixth Commandment) and the agents in question should understand their reprehensible, anti-Christian, and hence sinful, behavior. The process should have been allowed to run its course. The Senate Judiciary Committee would have rendered their verdict on the resubmitted questionnaire, there would have been hearings and—if the senators had retained any logic and dignity—Ms. Miers would have been soundly voted down by a majority.

Mr. Bush should never have nominated Harriet Miers and Mr. Hewitt points out the most important objection to this month-long excursion into nowhere: it delays the replacement of pro-choice Justice Sandra Day O’Connor. No-one would have expected her to be still on the Supreme Court in November, least of all O’Connor herself, who resigned after the previous Supreme Court Session last summer. But because she promised to remain on duty until her replacement is confirmed, she will likely be around to cast her vote against New Hampshire’s parental notification law in Ayotte v. Planned Parenthood to be argued next month. With the way the votes are lined up on the present Supreme Court, Justice O’Connor will likely cast the 5th and deciding vote against the constitutionality of parental notification. That will be the real tragedy in the Miers debacle.