Birds of a Feather

The Bush administration is known for its closeness and high degree of loyalty among the staff. Harriet Miers exemplifies these traits and has been praised as a faithful confidante of the President. In and of itself this should disqualify the nomination of Harriet Miers to the Supreme Court. Unfortunately, politics trumps principle and this rationale is insufficient to lay the nomination to rest.

The most salient political aspect of the nomination is the question as to whether Harriet Miers is pro-life in the sense that she will vote to overturn Roe. Unfortunately, this administration has consciously chosen a nominee who has little public record and also one that they have superior hidden knowledge. Our democracy works by advice and consent in reviewing nominees to the co-equal judicial branch so we are placed in a bind. How can we give our advice and consent through our elected representatives? While the burden of proof remains with the executive, we must make what inferences can reasonably be made with what information we have.

Democracies do not work well when critical information is privately held. We suffered such a failure when the 2002 National Intelligence Estimate was not released until after the Iraq war. Nonetheless, this has been the approach of the president in soliciting influential supporters with private assurances while publicly vouching by proxy for the the general character of Ms. Miers without offerring verifiable guarantees. So Nathan Hecht, a longtime friend of Harriet Miers, makes her case this way

Harriet goes to a church that is pro-life. She has for 25 years. She gives them a lot of money. Her personal views lie in that direction.

However, when pressed on the specific question of whether her personal opposition to abortion would give her sufficient cause to overturn Roe, Hecht says

I think she'll say they won't.

This case for Miers amounts to "nolo contendere by association" and forces us to make inferences that we ought not to be forced to make. The most odious inference that is being pushed upon us is that one's religious affiliation serves as a guarantor of political acceptability. We institutionally reject this anti-democratic notion in Article VI of the Constitution.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

A constitutionally corrupt process is being used to promote a Justice that will have the very duty of insuring constitutional fidelity by an executive that swore an oath to the same. This is about as mucky as it gets. So into the muck we go.

Empirically, Harriet Miers is most likely to have a judicial philosophy on abortion consistent with those which she associates herself. When Ms. Miers does pry herself away from work, she "spends Washington girls' nights out with the likes of Secretary of State Condoleezza Rice and former Agriculture Secretary Ann M. Veneman". Secretary Rice describes herself as a "pro-choice evangelical" while Ann Veneman is also pro-choice. Like Laura Bush and Barbara Bush, the women that surround Miers are uniformly pro-choice in their judicial philosophy. It follows that there is an increased expectation that Ms. Miers is also effectively pro-choice, a judicial philosphy shared by Alberto Gonzales, the man whose name the president initially floated for the position.

While attempting to maintain a public appearance of pro-life fidelity when political victory is at stake, Ms. Miers and the administration have consistently balked in taking meaningful action to redress the plague of abortions in this country. This all begs the question, "If Ms. Miers has neither the inclination nor experience to plumb the depths of the Constitution, by what criteria will she decide these issues?" Even experienced jurists such as O'Connor have authored many dubious opinions of late. We should expect Ms. Miers to similarily approach the issues that rock our society today and well into the future should the nomination proceed.


UPDATE:
Please also consider the positive case against the analysis here: Harriet Miers Called 'Fifth Vote Against Roe'

The idea that Miers is personally opposed to abortion but not necessarily legally opposed is also supported by Miers Called an Opponent of Abortion which makes clear that Miers' opposition is religious and not judicially reasoned, i.e. that she shares the same judicial philosophy as a man who also shares that philosophy with Alberto Gonzales who is known to be judicially pro-choice and to have a very jaundiced view of legally enacted parental notification requirements. In short, Miers is unlikely to vote to overturn Roe even when this information is considered.