ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Wednesday, October 26, 2005

Self-Determination

H/T Powerline

This article in the Washington Post about a speech that Miers gave back in 1993 has many conservatives withdrawing from their neutrality or even support of the nomination. Here is the text which is causing so much concern:

In Speeches From 1990s, Clues About Miers Views
Nominee Defended Social Activism

By Jo Becker
Washington Post Staff Writer
Wednesday, October 26, 2005; A01

Supreme Court nominee Harriet Miers said in a speech more than a decade ago that "self-determination" should guide decisions about abortion and school prayer and that in cases where scientific facts are disputed and religious beliefs vary, "government should not act."

In a 1993 speech to a Dallas women's group, Miers talked about abortion, the separation of church and state, and how the issues play out in the legal system. "The underlying theme in most of these cases is the insistence of more self-determination," she said. "And the more I think about these issues, the more self-determination makes sense."

In that speech and others in the early 1990s when she was president of the Texas Bar Association, Miers also defended judges who order lawmakers to address social concerns. While judicial activism is derided by many conservatives, Miers said that sometimes "officials would rather abandon to the courts the hard questions so they can respond to constituents: I did not want to do that -- the court is making me."

Now, I'm certainly not a Constitutional Scholar. However, I am part of the Rovian Cabal and do get my daily dosage of the Kool-Aid and I think this statement can be read in two ways. First, one could argue that Miers is basically saying that the legislature should be making many of these decisions, but the courts are over-stepping their bounds. What does self-determination mean? Well, it could be framed in this way: What would happen if Roe vs. Wade were overturned today? Would abortion suddenly become an illegal practice? No - each state would suddenly have to decide (via the legislative process) whether abortion would be legal in their state or not. This is essentially self-determination - the elected representatives of the people of the state deciding how to handle such an issue.

What was the argument presented in Griswold to defend the statute restricting birth control in Connecticut? That the legislature has the ability to pass stupid laws - and face the consequences from the voters at the next election. This could be called self-determination... And she points out that in the past, the legislatures have been too chicken to tackle such tough issues and face the ire of the voters, leaving the matters up to the course. She does not see this as a good thing.

The other way that the term could be construed would be that people should be able to do whatever they want, and that the courts are basing their various decisions on the desire for people to decide for themselves - without regard to the impact of those actions on the rest of society. If this is what she meant, I for one would be move from the neutral camp to side with the opponents, since self-determination could be extended to decriminalization of drugs, assisted suicide, polygamy, you name it... All of a sudden, the oft quoted phrase of "Who am I to judge?" would become a Constitutional doctrine.

At least the guys at Powerline are asking Miers to explain the meaning of this speech and are not immediately calling for her withdrawal. It seems that many critics of the Miers nomination are using any and every piece of information to support their position, regardless of whether it actually does or not.

Your Co-Conspirator,
ARC: St Wendeler