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Miers, Dobson, and Roe Revisited:
John Fund has a story in the Monday Wall Street Journal that promises to get a lot of attention. According to the story, Nathan Hecht and another judge told James Dobson and "other religious conservatives" on the day the Miers nomination was announced that they thought Miers "absolutely" would vote to overrule Roe v. Wade. An excerpt:
  On Oct. 3, the day the Miers nomination was announced, Mr. Dobson and other religious conservatives held a conference call to discuss the nomination. One of the people on the call took extensive notes, which I have obtained. According to the notes, two of Ms. Miers's close friends-- [Nathan Hecht and Ed Kinkeade,] both sitting judges--said during the call that she would vote to overturn Roe.
  . . . [The conference call was] a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"
  "Absolutely," said Judge Kinkeade.
  "I agree with that," said Justice Hecht. "I concur."
Positive Dennis:
It seems to me that overturning Roe vs Wade because one disagrees with the outcome, i.e. more abortions, is no more than conservative judicial activism. It should be opposed because it is bad law, even if one favors abortion choice.

Positive Dennis
10.17.2005 1:50am
Cornellian (mail):
Consider the prospect of a full scale retreat from Roe v. Wade, such that states have virtual carte blanche to legislate any restriction on abortion, including making it illegal and subject to criminal penalty from the day of conception. Consider also in a post-Raich world that the federal government is also free to regulate abortion to the extent that Congress sees fit. Some argue that this would be a political disaster for the GOP, as actually having to legislate the hard line pro-life "illegal from conception" position would not be politically popular. Karl Rove is presumably smart enough to realize this. Presumably at least some members of the Dobson-type social conservatives realize this too, but don't really care because abortion matters more to them than political popularity.

Now suppose that the President nominates a stealth candidate with no paper trail. If you're an evangelical who knows your illegal-from-conception position doesn't command majority support in the electorate, and you know that Rove knows this, and you know he's more concerned about winning elections than stopping abortions, what would you think of this nomination?
10.17.2005 2:03am
Nicole (mail):
Does anyone predict a subpoena of the conference call? A withdrawal of the nomination? Fillibuster?
10.17.2005 2:11am
Nicole (mail):
Oops filibuster. I can't spell.
10.17.2005 2:13am
whoami:
Cornellian, I think you're saying some very perceptive things, but doesn't your observation depend alot of Raich giving Congress the power to regulate abortion? That won't happen. And so the political calculus changes. At that point, although a no-abortion stance isn't popular on a national level (and anyone who throws out stats that say the country is split are mistaken... just wait and see the democratic base get fired up w/ pro-choice t-shirts if this becomes a real issue), legislation will happen at a state level, where arguably it will have to real political impact considering that most states' votes won't even be close. I am fascinated by the idea that Cheney (and maybe Rove) didn't even know about Bush's pick. I think I heard that somewhere but I'm not sure...
10.17.2005 2:14am
Cornellian (mail):
Whoami I'm not sure if you're saying that, as a constitutional matter, Congress wouldn't have the power to regulate abortion under the Commerce Clause, or whether you're saying that, as a political matter, Congress would choose to stay out of the issue and let states legislate whatever position they wish. Although the latter has in theory been the conservative position for years, I don't believe it, or at least I don't believe it now. Social conservatives are a much stronger force in the GOP than in decades past. If you believe a human life begins at conception, and that abortion is therefore murder, and you can't sell this position in the legislatures of the blue states, and your party has a majority in both houses of Congress are you going to stay out of the issue because of a concern about the nuances of Commerce Clause interpretation or are you going to try to legislate on a federal level to provide a "minimum floor of protection for innocent human life?" Put another way, which do evangelicals care more about 1) the proper scope of the Commerce Clause or 2) stopping abortions? Congress doesn't even stay out of the issue now. Why would they if the field were wide open after a roll back of Roe v Wade?

As for the constitutional issue, I don't think there's any doubt that Congress will have the power under the Commerce Clause to regulate abortion. Raich made is clear that federalism even now doesn't command a majority on SCOTUS and if Scalia is willing to forget about originalism to vote with the majority in Raich, he's going to look awfully hard to come up with a reason why federal restrictions on abortion are well within the Commerce Clause. He won't have to look hard, as abortion has far more economic hooks for federal jurisdiction to grab on to than the fact pattern in Raich. I can see Thomas dissenting, but with Rehnquist gone federalism is a lost cause in SCOTUS.
10.17.2005 2:35am
Bill Dyer (mail) (www):
It will probably get lots of attention. But it's still silly.
10.17.2005 2:45am
asdfasdf:
What chance does a hard line pro-life "illegal from conception" position have of becoming law *anywhere*?

(1) Modern birth control pills (BCP) have as a secondary mechanism the prevention of implantation. That way the dosages can be lower, which makes them safer, but lower dosages increase the chance of conception occurring. So preventing implantation makes sure that the pregnancy is terminated, when conception occurs.

(2) But then a law that makes abortion illegal from conception onward makes BCP illegal, too.

(3) I don't think even the most conservative of red states would pass a law that prevents the sale and use of BCP. Not once people find out the implications of the law.
10.17.2005 2:55am
John Armstrong (mail):
Cornellian, even a legal dilettante like myself can see the big hook right away:
SCOTUS overturns Roe v. Wade.
Various states legislate in various ways. Say -- for purposes of argument and not out of any expertise that these choices are realistic -- Idaho says none from conception and Washington keeps things the way they are.
Now there's a big motivation for a woman to take a spin from Coeur D'Alene to Spokane when she finds herself in a family way she wants very much not to be in.
Presto: interstate commerce.

Of course, I'd love for someone to point out why this wouldn't constitute a rationale for the federal government to get its hands on another area to regulate, control, and be "here to help" with.
10.17.2005 3:01am
Cornellian (mail):
I had in mind the fact that abortion, unlike the situation in Raich, is a commercial transaction. Raich was growing marijuana in her backyard for her own personal use. Getting an abortion involves paying a doctor who is in turn making a living practicing his profession. You don't even need Raich to federalize this. Even under Lopez/Morrison you can aggregate this and regulate any such procedure at the federal level provided all such procedures together would have an impact on interstate commerce, which of course they would.

Various states legislate in various ways. Say -- for purposes of argument and not out of any expertise that these choices are realistic -- Idaho says none from conception and Washington keeps things the way they are.
Now there's a big motivation for a woman to take a spin from Coeur D'Alene to Spokane when she finds herself in a family way she wants very much not to be in.
Presto: interstate commerce.


Well, I did notice that the population of Alabama managed to elect Roy Moore as its chief justice, and just a few years ago passed a referendum to remove the (obviously unenforceable) clause in the state constitution that mandated segregated schools by such a slim margin that the only reasonable inference is that a majority of the white population voting cast their votes to retain the clause. And I believe it was the recently elected senator from South Carolina (can't remember his name) who suggested that the death penalty was appropriate for doctors who performed abortions (or was that Tom Coburn from Oklahoma - I keep getting those two mixed up). Didn't stop him from getting elected. I'd say those two states are prime candidates for absolute or nearly absolute restrictions on abortion in the event of a complete rollback of Roe v Wade. Of course they won't be able to enforce it against any woman with a driver's license but I suppose they'll find ways to try.

By the way, I noticed Roy Moore's decided to run for governor, something many of us suspected all along. We'll see how he does.

Going off on a tangent here, I've often wondered what the scriptural basis, if any, is for the position that life begins at conception. It's not as if the Bible says that directly, nor is it a position with ancient origins, so presumably it's a new inference from some passage in the Bible or it's a position not based on scripture.

What chance does a hard line pro-life "illegal from conception" position have of becoming law *anywhere*?
10.17.2005 5:26am
AWT:

There's something very delicious about Dobson and co. unintentionally torpedoing what may be an anti-Roe lock by opening their traps to show their base how important they think they are. "I know things I'm not at liberty to share." Nice job, Jimmy; feel important now?
10.17.2005 7:27am
AWT:
I also think the Republican eloctoral reliance on the preservation of Roe is overstated. I don't doubt that there's conventional wisdom to that effect; I just don't think it's all that accurate. I think both sides benefit from it being there. For instance, not only can Coburn or whoever said he would send abortion providers to jail without being held to that, but conservative dems in conservative districts would have to put their money where their mouths are as far as actually *doing* something about abortion in a post-Roe world. What is Harry Reid's position on abortion legislation after Roe? And whatever it is, do you think he's Senate Minority Leader in such a world?
10.17.2005 7:32am
Anonymous Jim (mail):
I have always thought it was odd that they have put Hecht out there as he is (I believe) a sitting judge. But he knows her personally, has worked with her and he is a state court judge who, given the system, can and needs to participate to a certain degree in the political process.

Judge Kinkeade though is a sitting Federal district court judge. He is saying that he does not believe in stare decesis in regard to Roe. My questions: 1) Did he violate the spirit or letter of the Code of Conduct for United States Judges http://www.uscourts.gov/guide/vol2/ch1.html ? 2) If he was asked to participate in the call by the White House, could a litigant seek to have him recused (this is more than duck hunting it seems)? 3)Would he have to recuse himself from any case dealing with Roe?
10.17.2005 10:24am
Paul Deignan (mail) (www):
It turns out that Hecht's prediction (if the notes are correct) is contrary to his public statement published just days after the meeting where he flately stated that it was not possible to predict what Miers would do on Roe.

So we have a private statement to Dobson and a public statement to the press by the main proponent of Miers.

BTW, this is not the first disagreement in statements between the WH and Dobson on Miers. The WH also claimed that Miers was a first pick. This was contridicted directly by Dobson's statements.

These issues are well documented here (see update) and here.

Well, legal eagles, this is something for you to sink your talons into. I believe it demonstrates a mens rea.
10.17.2005 10:47am
Per Son:
Jim:

You can never force a judge to recuse her/himself.

On another note, does anyone think that some (I stress only some) of these conservatives would not care if this country was no longer a democracy or republic, as long as abortion is outlawed?

I feel some people like Dobson, Buchanan, and Robertson would not care if a king, Generalisimo, or El Presidente for Life ruled America, as long as abortion is illegal.
10.17.2005 10:59am
TC (mail):

On another note, does anyone think that some (I stress only some) of these conservatives would not care if this country was no longer a democracy or republic, as long as abortion is outlawed?


An interesting perspective, since -- thanks to the Supreme Court -- the abortion debate is no longer a democratic debate. This important issue (to many people on boths sides) has been taken out of the true forum of ideas by judicial fiat.

And Harriet Miers or any justice can't outlaw abortion from the bench. The best that anyone can hope for is to return the debate to the people.

Unfortunately, it's the left that has SUCCESSFULLY ignored democratic principles in legalizing abortion.
10.17.2005 11:17am
Anonymous Jim (mail):
Per Son,

"You can never force a judge to recuse her/himself."

True enough, but there can be (if I recall correctly) repercussions in some instances when a judge does not recuse himself when he should have.
10.17.2005 11:27am
Just an Observer:
This conference call, its participants and scribes, are almost certain to attract the active attention of the Judiciary Committee. The committee may end up questioning the two judges who are personal friends of Miers about what they know of her views of both abortion and overturning Roe.

If their knowledge of her opinions derives from a time before her nomination was in play, is that fair game for such interrogatory in the confirmation process?

If so, then not only might the two judges be asked about her privately expressed opinions, but Miers herself might be asked. It would seem difficult for her to claim some personal privilege, since these two friends participated in the political conference call on the matter.

And from there it is a short step to asking what opinions she might have expressed to President Bush on these controversial issues -- again, not just during any interview for this nomination, but during their longstanding friendship. He is the man who claims to know "her heart," and he is the man who nominated her.

When Bush was asked what he knew of the nominee's views on abortion at his Oct. 4 Rose Garden press conference, he danced around the question without actually answering it. Sitting in the witness chair during her confirmation hearing, Miers would not have such an easy time dodging the questions.

If the president, by virtue of his long and close relationship with Miers, knows how she would rule on overturning Roe -- just as her two judicial friends allegedly know -- that seems like the unexploded bomb in this process. Finding out what might have been said in such a context could trigger secondary explosions on both left and right.
10.17.2005 11:29am
alkali (mail) (www):
TC writes:

And Harriet Miers or any justice can't outlaw abortion from the bench.

I believe that a number of people have contended not applying the murder and conspiracy statutes to doctors who perform abortions and women who seek abortions constitutes a violation of equal protection. A justice who adopted this theory would effectively be outlawing abortion.
10.17.2005 11:44am
Steve:
I notice some comments refer to Congress' authority over abortion issues as though it were a blank slate. It's not, of course; the Partial-Birth Abortion Ban Act of 2003, for example, is the subject of litigation throughout the federal court system. And it's noteworthy that, as best as I can tell, the litigants seeking to overturn the PABA have not even TRIED to argue that the statute exceeds Congress' powers under the Commerce Clause.

Roe v. Wade itself could be reversed with the change of a couple votes, but it would take a far broader judicial revolution than that to overturn the modern understanding of the Commerce Clause. Moreover, in a political sense, when one party controls the Presidency as well as both houses of Congress, they have little incentive to appoint Justices who will impose broad limits on federal power. It is always the party which is out of power at the federal level that advocates for federalism.

It is possible, in a post-Roe world, that Congressional Republicans might suddenly become fans of federalism on the abortion issue, to provide them with an excuse for refusing to criminalize abortion (which would surely be an unpopular move).
10.17.2005 11:48am
Anderson (mail) (www):
Jim: I think you're incorrect. If, say, a district court judge refused to recuse, that would be appealable (possibly only after the case was resolved in that court, possibly on interlocutory appeal). However, I don't see that a Supreme Court justice can be made to recuse, there being no higher Court. Now might be a good time for the Court to begin drafting a rule whereby a 2/3 vote can force a justice to recuse?

Cornellian: The verse I always hear is the one from Jeremiah (often used as a summary of the similar language in Psalm 139), "Before I formed you in the womb I knew you." The deficiency of this argument is evident, since it gives no reason to believe that God "knew" an aborted baby before it was formed in the womb.

The broader argument, of course, is that the Bible forbids murder, and thus it comes down to the familiar issue of whether &when an embryo or a fetus is a "person." (I confess that seeing my own baby's ultrasound has made me decidedly cool on abortion, tho I still don't favor criminalizing it, on the theory that doing so would endanger as many or more lives as legalized abortion does.)
10.17.2005 12:09pm
Per Son:
Comment on democracy. Democracy entails that certain freedoms exist. The comment that the left is undemocratic as far as abortion is concerned, seems to equate democracy with majority rule. Majority rule may exist somewhere, but our Constitution never envisioned majority rule as the defining idea of democracy. If so, why would we have a Bill of Rights, and why would the Judiciary be a co-equal branch of government? If the will of the majority ruled, the Congress would have the ability to overrule the Court on Constitutional matters.

Lastly, I was not fair. I'll add that many anti-gunners are willing to put everything in the Constitution on the chopping block to keep guns off of the streets. However, I do not need to be fair, as my question only dealt with one block of problem people.
10.17.2005 12:20pm
TL:
By the way, I just read the transcript of Dobson's radio address from Wednesday in which he answered the fury over what he knew that he "shouldn't have known." The gist of what happened was that Rove gave Dobson the names of Kinkeade, Hecht, and others who knew Miers. Dobson says that it had more to do with timing than actually knowing an improper secret. It makes sense, and I accept Mr. Dobson's answer. Last week he was getting blasted on this blog as having been caught in a lie either to puff himself up, or a lie to cover up for the administration.

This judgment was premature and motivated by forces other than a sincere analysis of what actually transpired. I have heard lots of good things about Dobson's integrity (through my readings concerning him, and through talking to people who have met the man, including my own brother). Shame on some of you.
10.17.2005 12:31pm
TC (mail):

Comment on democracy. Democracy entails that certain freedoms exist. The comment that the left is undemocratic as far as abortion is concerned, seems to equate democracy with majority rule. Majority rule may exist somewhere, but our Constitution never envisioned majority rule as the defining idea of democracy. If so, why would we have a Bill of Rights, and why would the Judiciary be a co-equal branch of government? If the will of the majority ruled, the Congress would have the ability to overrule the Court on Constitutional matters.


Our framers certainly envisioned many issues as being outside of the realm of democratic debate -- and they enshrined these ideas in the Constitution. They certainly had the ability to enunciate abortion rights -- or anything else in the "penumbra" of privacy rights -- as outside of the normal democratic process.

The majority doesn't rule, but majority principles do rule most political issues. Somehow, the left was able to enshrine abortion as a constitutionally-protected act and take it out of the political debate.

And now we have to have these silly fights about Roe v. Wade -- fights that vitiate our founders' belief that democratic debate is the best way to solve most of our political differences.
10.17.2005 12:48pm
Cornellian (mail):
Stretching constitutional language to favor one's position is hardly the exclusive preserve of the left.

Our framers certainly envisioned many issues as being outside of the realm of democratic debate -- and they enshrined these ideas in the Constitution. They certainly had the ability to enunciate abortion rights -- or anything else in the "penumbra" of privacy rights -- as outside of the normal democratic process.

The majority doesn't rule, but majority principles do rule most political issues. Somehow, the left was able to enshrine abortion as a constitutionally-protected act and take it out of the political debate.
10.17.2005 1:08pm
Sr. (mail):
I, for one, think that the emphasis is on the wrong member, if you will, of the political tripartite.

No Sperm Left Behind.

We need to regulate masturbation now, before it gets out of hand.

Meiers, clearly, will be an aid to marital efforts everywhere.

I'll shut up now, as I realize I'm close to trolling. Just couldn't resist the obvious.
10.17.2005 1:10pm
Per Son:
To TC, and other mature posters, thank you. While I disagree with many of you, we can have decent dialogue as opposed to "Sr."
10.17.2005 1:13pm
Syd Henderson (mail):
Since sperm banks are commercial enterprises, Congress has the right to regulate masturbation under the Commerce Clause. Kelo v. Onan
10.17.2005 3:41pm
Syd Henderson (mail):
Or is it Onan v. Raich?
10.17.2005 3:44pm
Anonymous Jim (mail):
"Jim: I think you're incorrect. If, say, a district court judge refused to recuse, that would be appealable (possibly only after the case was resolved in that court, possibly on interlocutory appeal). However, I don't see that a Supreme Court justice can be made to recuse, there being no higher Court. Now might be a good time for the Court to begin drafting a rule whereby a 2/3 vote can force a justice to recuse?"

When I was talking about recusal I was talking about the U.S. District court judge not the presumptive Supreme Court Justice.
10.17.2005 4:41pm