My, Oh Miers!
Joseph M. Knippenberg
October 1, 2005
To say the least, I was dismayed when I read the speech Harriet Miers delivered some twelve years ago to the "Executive Women of Dallas." Her muddled and imprecise arguments are unworthy of an attorney of her accomplishments. What’s more, they raise questions about where precisely she stands on some fundamental issues, questions she can’t avoid answering if she comes before the Senate Judiciary Committee.
The first part of Miers’s speech is devoted to a discussion of the relationship between the judiciary and the political branches. She makes the case, which I too have made, that politicians have ceded authority to the judiciary in order to dodge difficult issues. As a critique of a cowardly strategy of political avoidance, it’s dead on.
But to turn it into a constitutional critique requires an additional step that Miers doesn’t take. If she had added that it’s not the role of judges to settle our political problems, and urged judges not to tread where they don’t belong, leaving the ball back in the politicians’ court, then she could have won the applause of any friend of separation of powers, checks and balances, and limited constitutional government. Instead, whether she meant to or not, she leaves the impression that someone has to deal with these pressing problems, and that the courts will (and perhaps should) if the legislatures don’t.
If she makes it to the Senate Judiciary Committee, someone should ask her about this. Are there social problems so pressing that, in the absence of legislative action, judges are empowered to step in to address them? If so, on what constitutional provisions should they rely to authorize their action? And what distinguishes this from "legislating from the bench," which she has apparently eschewed?
Since these questions speak directly to Miers’s conception of the role of the judiciary in a limited constitution, she can’t avoid them. And because she made this speech, she can’t just offer platitudinous responses.
Toward the end of her speech, Miers raises the issue of "the law and religion," under which rubric she alludes to a number of vexed issues, including abortion and prayer in the schools. As one observer noted, two Supreme Court decisions—Planned Parenthood v. Casey and Lee v. Weisman—provide the immediate legal context for her remarks.
The former, which affirmed the "central holding" of Roe v. Wade, contains the following startling assertion:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
At this point, the three judges who support the controlling opinion (O’Connor, Kennedy, and Souter) depart from any mooring in law or legal tradition. And Miers appears to join them, asserting that "[t]he underlying theme in most of these cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes the most sense."
From this highly subjectivist position, it is easy to see how she is able to refer to "abortion clinic protestors" as "synonymous with terrorists" and to characterize the abortion debate in terms of "the attempt to once again criminalize abortion or to once and for all guarantee the freedom of the individual women’s [sic] right to decide for herself whether she will have an abortion." This language is hard to square either with Miers’s 1989 support for substantial restrictions on abortion or with assurances offered more recently that she is pro-life.
The fact that she treats the abortion debate under the rubric of religion is itself troubling, as if the only conceivable basis for opposing abortion is religious. After all, she asserts that "[l]egislating religion or morality we gave up on a long time ago." The only possible basis for legislative authority is, she claims, science:
Where science determines the facts, the law can effectively govern, However, when science cannot determine the facts and decisions vary based upon religious belief, then government should not act.
It is perhaps unfair to press her too hard on these bland but sweeping assertions, but it seems to me that some implications (not to mention questions) inevitably follow from them, even if she doesn’t fully appreciate them. If science is silent about the purpose and meaning of life, if this is a mystery to be determined by each individual for herself, then do we not leave it to each individual to decide what life is? And even if science can distinguish between what is living and what is not, it cannot tell why life has value and why it should be protected. That’s a moral question, regarding which we cannot legislate. It’s up to the individual to decide. Hence, because science can offer us no authoritative pronouncements here, there can be no legislation. We have arrived at abortion on demand, and possibly things much worse.
Perhaps Miers didn’t mean exactly what she said. Perhaps she was simply inelegantly attempting to restate the Planned Parenthood holding, which balances mysteries and changes in the science of fetal viability. Senators could ask her about that, if she appears before them. Perhaps she has changed her mind again, as she apparently did between 1989 and 1993. Or perhaps she is simply personally opposed to abortion, having defined for herself the mystery of life. Senators could ask her about that too.
I don’t have the heart to say much about Miers’s opinion on school prayer, which she also frames in terms of self-determination and appears to regard as one of "the easier cases." Here’s what she says:
No one should be able to oppresively [sic] require a student to participate in religious activities against their [sic] will, but if a student on his or her own chooses to express him or herself in religious terms, that should not be prohibited.
Again, this seems inelegantly to restate the holding in Lee v. Weisman, but it avoids addressing the questions that make that case controversial and the whole issue difficult. Yes, it’s easy to say that you can’t compel a student to worship against his or her will, but when is it compulsion and when is it worship? Is a benediction or invocation at a commencement an "oppressive" requirement? John Roberts, who was on the Bush Administration’s brief in that case, didn’t think so.
I guess members of the Senate Judiciary Committee could walk her through the various school prayer issues too, if she appears before them. Given what she’s said, they have to ask.
I realize that this is one speech, delivered twelve years ago. I’m not sure that I’d want to be measured by one speech I gave twelve years ago or even twelve weeks ago. But I’ve said a lot in the meantime. And twelve years ago, I might have had the excuse of (relative) youth and inexperience. I was a newly tenured associate professor. Harriet Miers was 48 years old, had practiced law, quite successfully, for more than twenty years, and was president of the Texas Bar Association.
She has a lot of explaining to do. If she’s offered the opportunity.
Joseph M. Knippenberg is an adjunct fellow of the Ashbrook Center. He is Professor of Politics and Associate Provost for Student Achievement at Oglethorpe University.