OK, I can't stand it anymore. On the principle that one shouldn't encourage the others, I wasn't going to comment on the Harriet Miers nomination to the Supreme Court. There's already way more political blogging than we need, and the row about Miers in particular has brought the worst out of everybody, including my fellow social conservatives. (Of course my liberalism about health care has also gotten some of the latter afroth, but one doesn't always have to take the delicious opportunity of offending everybody.) All that granted, however, something needs to be said to set this thing in perspective.Apart from the question of Miers' professional qualifications—about which I have nothing useful to say—the firestorm on both the right and the left is probably the best evidence the White House has "outstealthed" itself, in Rich Lowry's words. But short-term political miscalculations, if that's what this nomination is indeed an example of, don't much interest me. What really interests me are the long-term implications. And on that score, Ann Coulter is uncomfortably correct. The real problem with Miers is not that she's unqualified, or Christian, or whatever other epithet one throws and recoils from; it's that she's too comfortable with what the Supreme Court has evolved into over the past half-century: a monarchy with theocratic power. That means President Bush is too.
The question how she might vote on Roe v Wade—should the occasion for that arise—is, as always, the basic one driving the pugilists. If anwerable at all, it can be answered by citing a fact that few outside the legal profession care about. Miers supports the majority decision in the case where metaphysical "privacy" jurisprudence first reared its hydra-head: Griswold v Connecticut (1965). That was the key precedent for Roe even though most legal scholars consider the majority's argument in Griswold something of an embarassment. (I posted on that topic a few weeks ago.) As Justice Hugo Black wrote in his dissent:
One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used... For these reasons I get nowhere in this case by talk about a constitutional "right of privacy" as an "emanation" from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.
Actually, Griswold was only the most poorly reasoned of a series of Court decisions that had substituted verbal legerdemain in service of social policy by fiat for constitutional interpretation as traditionally understood. That's what set the stage for Roe; so if the original precedent stands, then by stare decisis the derivative ones do too. Whatever her personal feelings about abortion, Harriet Miers is logically committed to supporting Roe. Unless her heart, with the gentle stroking of Messrs. Justices Scalia and Thomas, rules otherwise.
That's why I dislike this nomination. It will probably fail for the wrong reasons. But in politics that's often the best one can hope for.
