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October 05, 2005
Justice in a vacuum
America’s Most Wanted at this point in our history is the non-activist Supreme Court justice. The ideal justice, an oft-reprised line goes, will put his or her personal beliefs aside and simply interpret the law on the foundation laid by James Madison and the gang. We heard Chief Justice John Roberts labeled as such a judge during his confirmation process – just an umpire, he himself said he would be. And we’re hearing the same thing about Harriet Miers.
In today’s Monitor, we ran a Washington Post story in which a man who knows Miers well describes her as a born-again Christian who believes that life begins at conception and that abortion is taking a life. He and others assert that as a Supreme Court justice, she would disregard her own views and rule only on the basis of the Constitution and the law.
Whatever her intentions might be, I doubt it. For more than 30 years, a Supreme Court majority has found that the Constitution bestows on women the right to decide for themselves, within clearly drawn restrictions, whether to terminate a pregnancy. If Miers believes abortion is taking a life, how can she possibly accept this interpretation of the Constitution? She would have to conclude that the Constitution condones taking a life.
The idea of some distinct, easily drawn line between a justice’s fundamental moral beliefs and how he or she interprets the Constitution is bogus. The big questions before the Supreme Court include assisted suicide, abortion rights, gay rights and church-state separation. These issues matter to all Americans. They also matter to the justices – personally.
To the cases that come before them, even justices who purport to be conservative, non-activist originalists bring their own morals, opinions, politics and life experience. We citizens should want them to. In eulogies to Justice Harry Blackmun a few years ago, friends observed that he recognized that there was life outside the court. The alternative is justice in a vacuum.
Americans are scratching their heads over President Bush’s stealth nominee. Many are doing as I just did and trying to assess how she would vote on Roe vs. Wade and other social issues. I don’t expect the Senate hearings to clear much up. I do expect that if Miers is confirmed, she will bring all her baggage to the Supreme Court. Hard as she might try to rise out of herself and interpret statutes by only the considerable light of the minds of the founders, she will not be able to do it.
Posted by Mike Pride at October 5, 2005 04:10 PM
Comments
I wonder how many people have read the text of Roe v. Wade. Consider this paragraph:
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.
Notice that the language speaks to the interests of the unborn as well as the mother. Observe that the term "potentiality of human life" is deliberatly vague and thereby has allowed political divisions to develop over its constitutional meaning.
We did not get clarity in Roe v. Wade and that is why we are still debating it.
Posted by: fullert at October 6, 2005 09:27 AM
I was reading the first poster's comments and just can't pass this one by.
While it's apparent the previous commenter is a pro-lifer and therefore entitled to his/her own opinion, I think clarity of the specified paragraph occurs in the line "a woman's qualified right to terminate her pregnancy". The fact that the state declares interest in the "potentiality of human life" refers to the Court's interest in examining subjects that may be case specific but relate to the core of this case from there on.
Furthermore (and separate from the previous poster), I find it almost hilarious at this point that anyone could even suggest without choking that Roberts and Miers could entirely separate from their personal beliefs for the good of the Constitution, especially since these beliefs are are fostered by their religious backgrounds.
If that were true, I'm sure that President Bush would have had no problem nominating a former NARAL lawyer to the Supreme Court. NARAL lawyers, similiar to Miers, have no experience as judges. Don't you think they would have been able to put their career experience and beliefs as advocates of abortion rights aside for the good of the Constitution? Of course not. And Bush knows that, so why even pretend to insult the intelligence of the American people?
I love how my convictions in a woman's right to choose labels me as a "baby killer", but people like Miers hide behind being religious to make their beliefs more convincing.
Roe v. Wade isn't solely about abortion, but a precedent for freedom and choice. And as a woman, I cannot understand how a seemingly intelligent & successful woman like Harriet Miers would want to put laws on her body.
Unfortunately, I'm sure Harriet Miers will be confirmed to the Court. Her record at the White House shows she has strongly lobbied for conservative judges because of her own personal convictions, and she won't be any different as a Supreme Court judge. Her religious beliefs will of course temper her voting record, regardless of the nonsense she and Bush are spewing out just to get her confirmed.
Posted by: M.Pride at October 6, 2005 04:45 PM
My pro-life vs. pro-choice view point is not material to this discussion.
The term "potentiality of human life" is entirely germain to it and to the case it self. This is not a question for politics, but for medical science. Prenatal life (human vs. clump of cells)is not clearly defined in Roe v. Wade. If the court were to define this term explicitly then abortion rights would be explicit.
As the laws are applied, the unborn are protect by custodial claim. If a mother wants her unborn, then an assailant may be charged with murder (Peterson). However, if the mother does not what her unborn, then there is no claim under Roe. v. Wade.
The court is trying to have it both ways under the vagery of the term.
Posted by: fullert at October 7, 2005 10:54 AM
I would like to post a comment about Harriet Miers. It will take more than the power of one person to make changes to our laws and constitution. Harriet Miers is only one person. Majority rules. It should not be important as to where Harriet Miers goes to church. President Bush obviously believes this lady has what it takes, then his recommendation should be tolerated. Remember, the moment Harriet Miers allows her judgement to be swayed based on her religious views, everyone is going to make their disapproval well known. I respect President Bush for his views and his decisions. Thank you and good luck to you all.
Posted by: Teresa Hilliard at October 27, 2005 09:25 PM