The Washington Post is trumpeting
a story that Harriet Miers
agreed in 1989 that she would "actively support" a proposed constitutional amendment that would ban abortion except when necessary to prevent the death of the mother.
This should be a so-what story, but it isn't because the Supreme Court took it upon itself to override the legitimate decisions of state legislatures and make a national law that half the country thinks allows murder.
The problem with this is that while it has given the pro-abortion groups a lot of comfort, they may not feel the same if the court turns and says abortions are illegal regardless of what the state legislatures say. The point is that this is not how the Constitution says we are to make laws. It leaves such matters to "the people," not judges, and I can only interpret that as meaning the duly elected legislatures. Using the arguments that led to Roe v. Wade
, you can make an argument that almost anything should be a personal right, and if the Supreme Court is dumb enough to listen, that's the end of democracy.
Update: Miers' responses to the Senate questionaire
were released today. Her comments about judicial activism and the proper role of the courts were encouraging to me. The intellects in Boswash aren't too impressed, but I'm beginning to think they don't really mind judicial activism as long as it flows in the direction they want it to. I don't know whether she'd vote to overrule Roe v. Wade
or not, but she's left that open. Stare decisis
shouldn't be a shackle binding the law to badly reasoned decisions, which I think Roe
is. And the reasons for upholding it given by Justice O'Connor among others were even worse. Basically, they argue that since the the Supreme Court's job is to settle divisive issues, once it has tackled that tough task its ruling should be given extra weight and not revisited. That presumes that it is the Court's prerogative to settle political debates. It's called the fallacy of begging the question. Unless the Court enjoys watching these tawdry political spectacles that treat confirmations as ehanced political campaigns, in which the people themselves don't have more than a secondary voice, it needs to recognize the truth of Miers statement that "parties should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom and correctness of their preferred course. Courts are to be arbiters of disputes, not policy makers." By failing to do so, the Court has disrupted the balance of powers, overridden democracy without justification and earned the disrespect and resentment of a large part of the citizenry.
Why does this have to be so difficult?