Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Tuesday, October 18, 2005

If Abortion Shouldn't Be the Law, Then Why Endorse an Amendment?

I want to be clear at the outset that this post is offered in an impish spirit of devil's advocacy. The New York Times reports that, in a 1989 questionnaire, Harriet Miers indicated that she would actively support a constitutional amendment banning abortion except where the mother's health is threatened.

As a candidate for a seat on the Dallas City Council, Ms. Miers answered "yes" to the following question: "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature?"

Ms. Miers answered "yes" to all the organization's questions, including whether she would oppose the use of public money for abortion and whether she would use her influence to keep "pro-abortion" people off city health boards and commissions.

Ms. Miers also said she would refuse the endorsement of any organization that supported "abortion on demand," would use her influence as an elected official "to promote the pro-life cause," and would participate "in pro-life rallies and special events."

Here's my question: Isn't an accession to constitutional rulings upholding abortion a prerequisite to taking a position that assumes the necessity of a constitutional amendment to modify the law in that arena? To argue otherwise, roughly speaking, is akin to a criminal suspect maintaining his innocence in fact, but asking what sort of deal the prosecutor is offering.

The position in support of the amendment, of course, is one held by many people who clearly believe that Roe and progeny were wrongly decided in the first instance and ought to be overturned. And that's not an entirely inconsistent position, inasmuch as an amendment would end the debate and obviate the Court's prerogative to revisit the issue every few decades according to evolving public mores or other vicissitudes invoking its consideration. Nevertheless, it's a difficult rhetorical position to justify on paper (and hardly the only one in the conservative canon).

And as long as we're considering untenable rhetorical positions, the article also offers this gem (which I've seen, but not posted on, before):

But Ms. Miers also took a position that upset some conservatives during the 1989 campaign, saying that she supported equal civil rights for gay men and lesbians, although she did not support repealing a local ban on sodomy.

This suggests that, contrary to a great deal of precedent of which Roe is only one small piece, she doesn't believe sexual freedom is a "civil right." That is, if we assume her use of such terminology to be rigorous and informed. The alternative, that this is mere sloppiness on her part, suggests that as of sixteen years ago she lacked the discipline of terminology even a savvy law student possesses with regard to constitutional law. And what has she done since then to suggest her constitutional positions have evolved to attain a greater degree of refinement? Bupkus. Nada. Nothing.

Further undermining my confidence that Harriet Miers can speak competently on pressing issues is this report:

Senate Judiciary Committee Chairman Arlen Specter said Monday that Supreme Court nominee Harriet Miers told him in a private meeting that she believed the 1965 case of Griswold vs. Connecticut -- a landmark ruling establishing the right to privacy -- was "rightly decided."

However, after the White House took exception to Specter's comments, the Pennsylvania Republican late Monday released a statement saying that Miers later called him to tell him that he had "misunderstood" her answer -- and that she had not taken a position on either Griswold or the right to privacy, the legal underpinning for the 1973 Roe vs. Wade decision legalizing abortion.

Specter's carefully worded statement did not withdraw his comments about Miers discussing Griswold with him, nor did it offer a correction. However, the statement said the chairman accepted Miers contention "that he misunderstood what she said."

On a related note, another Times article reports that Senator Schumer (Supercilious--NY) claims Miers could not speak clearly on Griswold and Meyers v. Nebraska, a seminal 1923 case concerning parental fundamental rights to educate their children thought to have contributed to the Court's evolving jurisprudence finding a constitutional right to privacy -- a case, as Senator Schumer noted, that any diligent law student can discuss with some aptitude after a couple of months of Con Law.

"I didn't learn answers to so many questions," he said. "On many she wouldn't give answers, and many others she deferred, saying, 'I need to sort of bone up on this a little more,' 'I need to come to conclusions.' "

So apparently the crash course in con law isn't going so well. And apparently Miers isn't coated in the same vaseline Chief Justice Robert was. She better lube up right quick, or else she's in for a world of hurt on the Senate floor. Schadenfreude, anyone?


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