Monday, October 17, 2005

The Harriet Miers' Borking Moment

John Fund received notes of a conference call held shortly after the President announced the Harriet Miers nomination between a number of conservative groups and two Texas-based judges: Texas Supreme Court Associate Justice Nathan Hecht, and Federal judge Ed Kinkeade of the Northern District of Texas, Dallas Division (and a former judge on the Texas Court of Appeals for the Fifth Judicial District, more commonly known as the Dallas Court of Appeals).

If anything from the notes Fund received, other than the names of the participants on the call, is true, then Harriet Miers will be in for a huge confirmation fight. Excerpts:

What followed [James Dobson's introduction of the two jurists], according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"

"Absolutely," said Judge Kinkeade.

"I agree with that," said Justice Hecht. "I concur."

There is the bombshell. What effect will it have?

. . . Sen. Arlen Specter, the pro-Roe Judiciary Committee chairman, said, "If there are backroom assurances and if there are backroom deals and if there is something that bears on a precondition as to how a nominee is going to vote, I think that's a matter that ought to be known." He and ranking Democrat Pat Leahy of Vermont threatened to subpoena Mr. Dobson as a witness.

* * *
Should hearings begin on Nov. 7 as is now tentatively planned, they would likely turn into a spectacle. Mr. Specter has said he plans to press Ms. Miers "very hard" on whether Roe v. Wade is settled law. "She will have hearings like no nominee has ever had to sit through," Chuck Todd, editor of the political tip sheet Hotline, told radio host John Batchelor. "One slipup on camera and she is toast."

Should she survive the hearings, liberal groups may demand that Democrats filibuster her. Republican senators, already hesitant to back Ms. Miers after heavy blowback from their conservative base, would likely lack the will to trigger the so-called nuclear option. "The nomination is in real trouble," one GOP senator told me. "Not one senator wants to go through the agony of those hearings, even those who want to vote for her." Even if Ms. Miers avoids a filibuster, it's possible Democrats would join with dissident Republicans to defeat her outright.

The notion that Roe is defensible on legal grounds is preposterous -- it is one of the worst decisions in Supreme Court history because of what it did to the political process, how Justice Blackmun reached his conclusions and the terrible legal analytical approach that has infected so many cases since 1973. The question of whether Roe is good policy is a political issue that should be decided by elected officials (who actually have the courage to decide political issues instead of hoping that the insulated courts take up the slack). But the appearance that Miers may BE a stealth candidate for the Christian Right will have the Senate up in arms, will cause Bush to spend tons of his dwindling political capital to try to rescue her nomination, will likely result in a failure to appoint her and will ultimately force him to fill the spot with a question mark, just like Reagan did with Kennedy.

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