Harriet Miers on the Role of the Courts:
The Washington Post has unearthed some speeches that Harriet Miers gave in the early 1990s, and one of them appears to include a discussion of the role of the courts in hot-button areas like abortion and religion. Here is the most illuminating passage, recopied from this .pdf file:
  What else do we hear a lot today about the Courts. The law and religion. A preacher in Dallas is challenged by suits charging that he is ripping off the helpless and defrauding them with prayer cloths, etc. Abortion clinic protesters have become synonymous with terrorists and the courts have been the refuge for the besieged. The Branch Davidian compound became a sight for speculation about legal responsibilities and legal rights. The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's right to to decide for herself whether she will have an abortion. Questions about what can be taught or done in public places or public schools are presented frequently to the courts.
  The law and religion make for an interesting mixture but the mixture tends to evoke the strongest of emotions. The 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. Legislating religion or morality we gave up on a long time ago. Remembering that fact appears to offer the most effective solutions to these problems once the easier cases are disposed of.
  The writing is awkward enough that I'm not entirely sure what she is saying. In particular, it's unclear in the second paragraph whether solving "cases" means imposing judicial solutions or finding some other kinds of solution. VC readers, what do you think?

  Link via How Appealing.

  UPDATE: A reader at Bench Memos points out that this speech was given shortly after the Supreme Court's decisions in Lee v. Weisman and Planned Parenthood v. Casey, so Miers may have been referring to the majority/plurality opinions in those cases. But we can't be sure.

Related Posts (on one page):

  1. Miers Speech:
  2. Harriet Miers on the Role of the Courts:
James Kabala (mail):
It seems to me as if she's endorsing legal abortion, or at least coming a lot closer to doing so than when she was running for the Dallas City Council just a few years earlier.
10.26.2005 12:10pm
Humble Law Student:
Orin wrote, "Here is the most illuminating passage" If that is true, then thank you for not posting the rest. I'll save myself and NOT read the rest.
10.26.2005 12:10pm
My best guess is that she was talking about court cases throughout. The first paragraph begins and ends with references to the courts, and so I would take her reference to "these cases" in the second paragraph to be about court cases. Finally, her brief reference to legislation is described as a "fact" that we should remember while considering cases, so that also seems most consistent with her final reference to cases being specific to court cases.

By the way, frankly, I think she was probably talking about Casey.
10.26.2005 12:12pm
guest post (mail) (www):
Like the SNL skit: "You just can't put too much water in a nuclear reactor."

Sounds good, can be read each way.
10.26.2005 12:14pm
Richard Bellamy (mail):
Yeah, I get the feeling that when Justice Miers is writing for the majority, I'll have to get all the way down to the last line before I find out if the lower court was AFFIRMED or REVERSED>
10.26.2005 12:16pm
Larry (mail) (www):
Ironically, Miers had told many people that they were "bad writers" in person.
10.26.2005 12:18pm
Anderson (mail) (www):
"Self-determination" sure doesn't sound like "determination by the states," does it?

More evidence, if needed, that Miers's nomination had nothing to do with turning back Roe, leaving the theory that Bush wants an Executive Branch flunky on the Court in the wake of Hamdi, etc.
10.26.2005 12:22pm
The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's right to to decide for herself whether she will have an abortion.

The ways she frames the debate here should worry pro-lifers.

But as noted, it is hard to tell exactly what she is saying from this excerpt.
10.26.2005 12:49pm
when did a person's ability to effectively obfuscate meaning through language become such a desirable quality in a public figure? i've always understood the opposite to be desirable. still, i suppose the linguistically-challenged (whether purposefully challenged or not) tend to stick together, as they can pretty much read anything they want to into each other's speech.
10.26.2005 12:56pm
Hebert Sampson (mail):
In all honesty, no one who writes so poorly should be drafting legal rulings for the Supreme Court. Either way you read it, it appears to be self-refuting.

If this is a representative sample of her thought, HEM on the Court would be worse than O'Connor. While O'Connor coherently blended together all the relevant factors in a particular case and yet was inconsistent over time as the cases piled on top of each other, Miers appears to be incoherent when discussing a particular case. That is inexcusable.
10.26.2005 1:18pm
Hebert Sampson (mail):
Not to play favorites, but Janice Rogers Brown's policy speeches are genius-level in comparison to this drivel.
10.26.2005 1:21pm
I can't believe she made law review and I didn't.
10.26.2005 1:21pm
Larry (mail) (www):
This is probably the way most people with political ambitions write. They don't want to address any real issues and they do not have the time to research or think about things in any depth. But since the Federalist Society wants more political people to be appointed to judgeships, this is what we will get. You folks should be happy.
10.26.2005 1:24pm
George of the Legal Jungle (mail):
That passage illustrates why Harriet Miers does not belong on the Supreme Court. Imagine what her tortured opinions would do the law. They say that the sh*t rolls downhill. I'm sure that's what lower courts will be thinking when trying to apply one of her opinions.
10.26.2005 1:28pm
Hey, I'm excited about the possibility of confusing/incoherant Supreme Court opinions. More legal fees for me!
10.26.2005 1:30pm
Larry (mail):
I guess that is a good point: some girl will be forced to carry an unwanted baby to term and some guy will be executed for a crime that he didn't commit based on a defective trial, and they won't even know what societal interest their suffering vindicates.

10.26.2005 1:39pm
CTW (mail):
"Legislating religion or morality we gave up on a long time ago."

question for lawyers - is it reasonable to assume that top lawyers even in non-con law areas have some awareness of SC cases on hot-button issues just as a matter of professional interest? understanding the nature of specialization in wide-ranging disciplines, I wouldn't be surprised if the answer is "no". but if "yes", isn't this a pretty strange statement, even in the early 90s and thus arguably prior to the current "great revival"?
10.26.2005 1:47pm
Veggie_Burger (mail):
"And the more I think about these issues, the more self-determination makes the most sense."

I find it odd that the above quote didn't strike a more positive chord with the VC readership. You guys really do want to impose your moral code and other reactionary views on the rest of us, don't you? Her writing was very careful and clever - like a good lawyer. She won't be so obtuse and cloaked in her views once she's on the Supreme Ct. because she won't have to be.
10.26.2005 1:48pm

Actually, I agree that there are some interesting views in this speech, many of which I might share.

That said, I think the writing was pretty poor. I also do not care to what degree Miers might have views like mine, since I think she is unqualified to be a Supreme Court Justice.
10.26.2005 2:03pm
Geez, Harriet can't write worth a lick, at least in the samples I've seen. (Maybe she improved later on . . . ?)

I teach writing, among other things, to undergrads, and goodness, she reminds me of nothing more than a freshman mired in the official style--all nominalizations, passive voice, being verbs, unclear agency.

I ask my students "Who is doing what?" to try to cut through the agency-less fog of their writing. Harriet needs a lesson in "Who is doing what?"

I hope it's not too cruel to say I will likely use a classic Miers passage or two in the second edition of my little writing book. Her leadership quotation is perfect:

"When consensus of diverse leadership can be achieved on issues of importance, the greatest impact can be achieved."
10.26.2005 2:21pm
unhyphenatedconservative (mail):
So we don't impose moral views via the law? What are anti-discrimination laws for private actors then?

Law is a codification of morality. When people say that you cannot legislate morality, they really mean they disagree with the morality being proposed for codification.
10.26.2005 2:39pm
Shelby (mail):
Miers seems to be arguing for individual self-determination on what are usually seen as "moral" issues. Her mentions of abortion are not directly linked to that argument, though. I've TA'd legal writing and research, and moot court, at Hastings. I would have been appalled if any of the 1Ls wrote this badly, and some of them were pretty bad.

The position she apparently advances is one I agree with; even so, she is simply incoherent. Together with her adulation of Bush personally, her seeming deference to executive authority, and her lack of relevant experience, this shows she is utterly inappropriate for the appellate bench.

when did a person's ability to effectively obfuscate meaning through language become such a desirable quality in a public figure?

Well, in fairness, it has worked for Alan Greenspan.
10.26.2005 3:34pm
Roach (mail) (www):
Someone asked if it's reasonable to assume the average lawyers would stay on top of the Supreme Court's rulings on hot button issues. Other than reading a newspaper article or two, the basic answer is no. Most commercial litigators who are not highly ideological one way or the other could care less. Miers likely doesn't even have strong views on anything else; she has no idea what she thinks because she's been committed to clients and vague notions of public service her whole life. Taking a stand ain't part of the drill.
10.26.2005 4:21pm
A Different Larry (mail):
Isn't it the intent of good lawyers to obfuscate and confuse competing lawyers? If that's true, she's a good lawyer. She's apparently good at political speeches, since the intent there is to convince a particular audience you share their views without necessarily upsetting another audience with opposing views. It appears she's competent in both tasks. Whether she's capable of sound reasoning and clarity of expression can't be determined with either activity.
10.26.2005 4:43pm
Elliot123 (mail):
I wonder who actually wrote this speech? If Miers did it, then she is a poor writer. If she didn't write it, I wonder if she read it before presenting it?
10.26.2005 5:21pm
Sean Foley:
The most unpleasant aspect is the lack of clarity and the poor grammar. A supreme court justice who writes with incorrect grammar? Unbelievable.

The first sentence lacks a question mark, the second lacks a verb. From the third to fifth sentences she changes tense from present tense, to present perfect tense, to simple past tense, for no apparent reason. The sixth sentence lacks punctuation. The second last sentence does not have a properly structured subject and predicate, while the last sentence has a dangling preposition.

This grammar would fail a high-school english test.
10.26.2005 6:10pm
bored 3L:
Reading those lines about individual self-determination and morals legislation, I have to wonder if she has any idiosyncratic views of the Ninth and Tenth Amendments and what they imply about individual rights vis a vis both state and federal government.

But that's probably reading too much into a few lines in a speech from 1993.
10.26.2005 6:18pm
Defending the Indefensible:
One possible nominee that has been largely overlooked since the confirmation of Roberts is the similarly qualified Maurreen E. Mahoney.

In the wake of the Miers withdrawal, I think she ought to be reconsidered.
10.27.2005 12:47pm
Paul doson (mail) (www):
Yup! I think you are right. It is surely possible.
10.28.2005 10:17am