Wednesday, October 19, 2005


Miers and Abortion

We're not getting the full story

It's interesting to see the media (and Matt Drudge) get their knickers in knots over the report that in 1989, SCOTUS nominee Harriet Miers signed a document saying she'd support a constitutional amendment restricting abortion rights. A-HA! That's the smoking gun, the proof that she'd vote to overturn Roe if a challenge presented itself to the court, or at least that's the angle that's what we are supposed to believe. However, that snap analysis is probably more appropriate for a middle school newspaper than it is as a measure of Ms. Miers constitutional views.

The fact that Ms. Miers allegedly supported a Constitutional amendment restricting abortion isn't a indicia that she'd vote to overturn Roe, in fact, it is probably a tacit endorsement of Roe as valid legal precedent. Why? If Miers is of the school that Roe was improperly decided, it is likely that she holds a very narrow view of the right to privacy, under which the right to choice lies, a constitutional amendment would not be necessary as the Constitutional doctrine underpinning Roe would be, in her view, invalid. A Constitutional amendment is needed when, in the view of the courts, a controversial right (abortion, prayer in school, flag burning, gay marriage) is generally agreed to fall under current constitutional protections. A amendment would serve to remove these rights from current Constitutional protections. So, from that point of view, Ms. Miers can be in support of a "Life" amendment to the U.S. Constitution and still support Roe.

Still, Miers flip flop on Griswold is troubling. Even conservative justice John Roberts easily admitted Griswold that is settled law. Her flip flop on it is not very judicial, and is likely to get her in trouble with Senator Spector, who is crazy-insane (and smart) when it comes to constitutional law. Amateur hour continues.

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