The deeper betrayal in the Miers nomination
Miers’s supporters have been touting the fact that she signed a questionnaire in 1989 saying she favored a constitutional amendment banning abortion. As David Frum points out, this undermines a key conservative position of recent years, that nominees for the federal courts be judged on their understanding of the laws and the Constitution, not on their political views, since a judge who is properly doing his job does not let his political preferences determine his interpretations of the law. But Miers’s supporters are saying exactly that. They’re saying that because Miers is (supposedly) against abortion and would like to outlaw it, therefore she can be counted on to find Roe v. Wade unconstitutional. The two issues have nothing to do with each other, of course. You could support a Constitutional amendment against abortion, and still believe that Roe was correctly decided or that stare decisis requires that Roe remain in place. Anthony Kennedy professes to be against abortion, yet he co-authored the radical majority decision upholding Roe in Planned Parenthood v. Casey. By advancing the idea that personal opposition to abortion must lead a judge to overturn Roe, the pro-Miers people have opened up every future conservative judicial nominee to an inquisition into his politics and religion. As Frum puts it, the pro-Miers forces seem bent on burning down conservatism in order to save it.
But the destruction goes beyond making difficulties for future conservative nominees, to the most fundamental constitutional principle: that judges interpret and apply the law as intended by the legislators who passed the law, not act as legislators themselves. If judges vote against Roe because they personally oppose abortion, rather than because they consider Roe unconstitutionally decided, then they are acting like legislators. Yet—the ultimate irony—we’re supposed to believe that a White House that promotes, as its main argument for Miers, the idea that judges should act like legislators, has chosen Miers because she opposes judges acting like legislators!
Thus the problem with Miers is far worse than that she is unqualified in constitutional law and lacks an originalist judicial philosophy; it is that her entire nomination is premised on the assumption that she will legislate from the bench.