Miers and Roe:
Here are two recent tidbits that touch on how Harriett Miers might approach Roe v. Wade. First, from the Saturday Washington Post:
  [As a candidate for Dallas City Coucil in 1989,] Miers agreed to sit down with a group of abortion rights activists. Operation Rescue was staging regular protests at area abortion clinics, and the group of about 10 women who met with Miers wanted to know whether she supported a 1985 city ordinance that protected patients from harassment. Four of the women in attendance said in interviews that Miers was immovable.
  "She said, well, I'm sorry, it's murder, and that's that," said Joy Mankoff, founder of a local women's political action network. "There was no room for any discussion."
  And second, from the latest issue of Time Magazine:
  One of the most intriguing insights into the Real Harriet Miers came from her longtime friend, former law partner and sometime love interest Justice Nathan Hecht, who is considered the most conservative justice on the Texas Supreme Court. "This is very important, and I don't think the public understands," he told TIME. "When you take an oath and swear that you will judge cases properly after that, you can't inject your personal views or religious faith into decisions because it would be wrong. You would either be a bad Christian or a bad judge. Religion says a lot about who you are personally, but it says nothing about stare decisis [following precedent], the commerce clause, the First Amendment, search and seizure or any of the issues she's going to deal with."
  UPDATE: For the sake of completeness, I should probably add this article from the Monday New York Times:
  Mr. Dobson, the influential founder of the conservative evangelical group Focus on the Family, has said he is supporting Ms. Miers's nomination in part because of something he has been told but cannot divulge. He has not disclosed the source of the information, but he has acknowledged speaking with Karl Rove, President Bush's top political adviser, about the president's pick before it was announced.
  On his radio program last Wednesday, Mr. [James] Dobson said, "When you know some of the things that I know - that I probably shouldn't know - you will understand why I have said, with fear and trepidation, that I believe Harriet Miers will be a good justice." He added, in a reference to aborted fetuses, "if I have made a mistake here, I will never forget the blood of those babies that will die will be on my hands to some degree."
If she can't set aside her personal feelings on abortion when addressing the issue of how to deal with overzealous pro-life protest groups, I'm not confident that she set aside her personal feelings on abortion when addressing the issue of whether abortion is constitutionally protected. Hopefully this will be enough to get the Senate Democrats on board with the anti-Miers campaign.
10.9.2005 11:59pm
JackJohn (mail):
The real issue is whether she believes that Bill Bennett has a constitutional right to abort black babies.
10.10.2005 12:03am
Cornellian (mail):
I'm kinda wondering whether the White House will see fit to let the Senate in on whatever information they've provided to Mr. Dobson.
10.10.2005 12:04am
AnonCon (mail) (www):
I would much prefer a justice that opposes Roe for its faulty legal foundation than because she believes it murder. Let Michael Luttig or Priscilla Owen sweep away Roe and then let us elect people who think it murder.
10.10.2005 12:28am
Could I ask you learned folks a question or two? They've no doubt been asked and answered a hundred times but I can't find the answers.

Considering the promise (demand) of more "federalism" as the Commerce Clause's reach is trimmed back and/or Roe/Casey overturned and left to the states to deal with, wouldn't substantial divergence of statutes and states' constitutional interpretation be bound to occur over time in and between the states? A kind of "different strokes for different folks", "vote with your feet", "red/blue state" solution to current political polarization, delighting both extremes and sounding OK to the vast middle. The Scalia thing where no support is found in the Constitution either pro or con so the court says go away and let the people decide. OK, let's say they do - over and over again in all kinds of different areas (legal and geographic).

At some point, wouldn't Equal Protection issues kick in and require a SCOTUS stop be put to all this "roll your own" foolishness? I'm especially thinking of the same-sex marraige train wreck happening before our eyes. But different levels of state-supported abortion services post-Roe/Casey overturn serve just as well. Or assisted suicide statutes or drug policies or whatever. Don't we end up right where we were (are) in the first place left with only a judicial solution to insoluble, politically fatal problems?

Have potential conflicts between federalism's consequences and Equal Protection/Due Process interpretations come up recently, been settled long ago or are they waiting in the wings? In other words, is it necessary to restrict federalism in order to free things up for Equal Protection and Due Process application? If so, is the promise of federalism an empty one unless and until substantial restriction of the liberal clauses is undertaken?

Thanks for any response.

10.10.2005 12:46am
ANM (mail):
Some benefits of federalism/decentralization:
People have greater control over government/Government adopts policies more in line with popular sentiment
Cities, Counties, States, Countries compete for desirable persons, inducing the respective governments to adopt favorable policies, like low taxes.

The Equal Protection Clause means all people are equal in the face of law, not all laws are equal in the face of people.
If I deduce correctly, your treatment of the Equal Protection Clause/Due Process Clause precludes ANY political system save a unitary one.
I know very little law (I'm a HS student), but I think you misunderstand.

Hey Cornellian, are you a Cornell student, an alumnus or a faculty member? I'm going to apply ED College of Engineering this fall.
10.10.2005 2:01am
AnonymousLawStudent (mail):
I noticed during the Roberts hearings that he was very circumspect when asked about the "right to privacy" by Biden, and so forth...

But I wonder, couldn't they just ask "Has the President asked you about your views on right to privacy/abortion/etc" without asking what she said?

Given the controversy I think the response to that question (making a big assumption that it would actually be responsive) would be just as telling.
10.10.2005 2:03am
jgshapiro (mail):
Seems to me that if you were a member of the Senate Judiciary Committee, you could subpoena Dobson to appear before the committee and ask Dobson what Rove said to him. Or, you could do the same thing with Rove. If either refuses to answer, hold them in contempt of Congress or simply return the nomination to the president and refuse to send it to the floor for a vote.

I don't think either could claim executive privilege in refusing to answer. Dobson is not a member of the executive branch and cannot rely on the defense that he needs the privilege to advise the president or the president's advisors; it seems that they were advising Dobson.

If nothing else, it would give you great cover for voting against Miers if you did not get a straight answer.
10.10.2005 2:41am
JackJohn (mail):
Except the above scenario would so humiliate the President that Democrats would be emboldened to reject anyone he sent up next. That is a horrible strategy from the standpoint of the Republican Party. Republicans on the Judiciary Committee are loyal to their party. What concerns them is that Bush's pick of Miers is bad for the nation and bad for the Republican Party. So damaging the party in the 2006 elections or damaging the party's ability to push through its legislative agenda or damaging the President's ability to confirm another nominee is not a good strategy.

That is something a Democrat who hates Republicans would say, jgshapiro.
10.10.2005 4:55am
John Beukema (mail):
Has it occurred to anyone that Dobson might be talking through his hat, trying to inflate his own importance with his followers -- "Look how important I am, I know stuff that you don't know, and that you have to take my word for"? A lot of folks, on both sides of the political aisle, don't pay any attention to him when he speaks on other subjects. Why should he be believed on this one?
10.10.2005 11:08am
Wince and Nod (mail) (www):
John Beukema,

James Dobson is an honest, humble man. Based on my knowledge of his character, I'd say it would have to be at a subconscious level.

But I am not Dobson's confessor and do not know what temptations plague him.

10.10.2005 12:01pm
Gordon (mail):
Dobson's sounding more and more like Pat Robertson every day.
10.10.2005 12:19pm
I would not be a bit surprised that Rove went to Dobson and told him that HM was anti-abortion, and that Dobson was comforted on that front. Bush has proven himself to be singlemindedly Christian to a fault; and that fault is throwing a religious conservative onto the Supreme Court in the way most likely to get her there without too much scrutiny. Bush is not interested in protecting the constitution or the law; he's interested in furthering his Christian conservative agenda.
Bush is no less dangerous to libertarians on the social front than are Democrats on the fiscal front.

(Note to ANM: if you're going into engineering, may I recommend Georgia Tech? Great school for engineering, especially for the price.)
10.10.2005 12:30pm
Per Son:
Dobson is honest and humble?

This is the guy that went after Spongebob!!
10.10.2005 12:58pm
magoo (mail):
The M word

Regarding one aspect of the Post article, I wouldn't necessarily assume as true Joy Mankoff's assertion that Miers said abortion is murder. She might have used less objectionable phrasing, such as "Abortion is the taking of a human life." Pro-choicers sometimes translate such assertions in a way that associates their opponents with the M word. I wonder if any of the other nine people in the room have backed Mankoff's characterization of the exchange.
10.10.2005 2:28pm
Christopher (mail):
how are "murder" and "taking of a human life" different other than in the introduction of the passive voice? obviously one can take a human life and have it not be murder (e.g. self defense, in the context of a war, some would argue assisted suicide), but those who say that abortion is "taking a human life" are not separating it from murder in order to condone it. do you support politically correct terminologies in other contexts? or if you contend that they are genuinely different then please explain to me why abortion is the taking of a human life and NOT murder.
is this just one of those "framing" wars i've been hearing so much about?
10.10.2005 3:22pm
Wince and Nod (mail) (www):
Dobson did not go after Sponge Bob. There was an incident where Dobson mentioned Sponge Bob. His comments were taken out of context and mangled by his detractors. Tell me, do you also feel compelled to mention Murphy Brown when Dan Quayle's name comes up?

Do people use cartoon characters when when they write propaganda for both adults and children? Sure they do. Most of the time we call it merchandising, and it's very effective. Do people also disguise their beliefs under some worthy rubric and present them to our children in the public schools? Manifest Destiny, to pick an old example, could never have been promoted in our public schools. Say it isn't so! Next thing you'll tell us that stealth political candidates and judicial nominees are being made.

10.10.2005 3:44pm
magoo (mail):
Fair questions, Christopher. People on both sides of the debate tend to find the murder formulation more jarring, more divisive, more antagonistic. Perhaps because the word murder carries certain legal and moral connotations. Perhaps because "taking of a human life" is a close analogue of the less threatening "I believe human life begins at conception." As I recall, John Kerry said the latter, but he would never, ever say (publicly) that abortion is murder.

So there is a difference in how people react to the two phrasings. I don't pretend to know why, and I'm not suggesting that it's necessarily a good or logical thing. But it is a reality. And I know of instances where a anti-choicer's "taking of human life" phrasing was denounced by pro-choicers as insisting that "abortion is murder." If someone uses a less divisive formulation, it seems like a low blow for an opponent to translate it into a more divisive one, no?
10.10.2005 3:54pm
Christopher (mail):
i agree with most of what you say magoo, but i think it's important to remember that it is the issue itself that is divisive, not the language used to describe it. just look at all the names we have for the two sides depending on whether you want them to look good or bad and how crass you feel like being (pro-life/anti-choice/anti-women vs. pro-choice/pro-abortion/pro-murder and on and on). the bottom line though is that this obfuscates the actual debate which is:
1.) does a fetus have legal rights/what legal responcibilities does a woman have to her fetus?
2.) what investigative and punitive measures should we put into place to punish those who violate those rights?

i personally think that the only way we can hope for any kind of resolution on this issue is if we demand clear answers to those two questions from all of our representitives. when we allow them to hide behind all sorts of platitudes and slogans (as people like John Kerry are so want to do) we get the debate stuck in the mud.
10.10.2005 4:16pm
magoo (mail):
Well put, Christopher. Your bottom line coincides with mine. And I appreciate your very civil tone, which is all too lacking in the debate. ....Magoo (an anti-choicer)
10.10.2005 5:36pm