Harriet Miers Supported Liberal Judicial Activism

We have registered our unease with Bush’s nomination of Harriet Miers for the Supreme Court, based on her support for a feminist lecture series at Southern Methodist University, and on her judgment that a White House Christmas message was “too Christian.”

Now comes what should be the last straw. Via Sykes Writes: An article in the Washington Post detailing some speeches she made in the 1990s.

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.”

She went further:

“The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s [sic] right to decide for herself whether she will have an abortion,” Miers said.

Those seeking to resolve such disputes would do well to remember that “we gave up” a long time ago on “legislating religion or morality,” she said. And “when science cannot determine the facts and decisions vary based upon religious belief, then government should not act.”

Such language shows a stunning willingness to accept liberal rhetoric. The notion that science can determine when life begins (or, at least, when it deserves legal protection) is naïve. And when liberals say that government should not “legislate morality” they mean that government should not legislate moral values that they happen to disagree with. When one outlaws racial discrimination one is “legislating morality,” and when one protects women from abusive husbands and boyfriends, one is doing the same thing.

When she explicitly turns to judicial activism, she is even worse. What she says, basically, is that legislators have only themselves to blame if they fail to do what liberal judges want, forcing the judges to step in and order their favored policies.

At the time, Texas was embroiled in an education funding dispute. The Texas Supreme Court had threatened to shut off most school funding if the legislature could not quickly devise a plan for fair funding. Some lawmakers pushed to remove school funding from the court’s jurisdiction.

But Miers blamed the legislators for what she called an “unacceptable” school funding plan and for ducking tough issues such as imposing a state income tax.

“My basic message here is that when you hear the courts blamed for activism or intrusion where they do not belong, stop and examine what the elected leadership has done to solve the problem at issue,” she said.

At a speech later that summer titled “Women and Courage,” Miers went further. Citing statistics that showed Texas’s relatively high poverty rates, Miers said the public should not blame judges when courts step in to solve such problems.

“Allowing conditions to exist so long and get so bad that resort to the courts is the only answer has not served our state well,” she said. “Politicians who would cry ‘The courts made me do it’ or ‘I did not do that — the courts did’ should not be tolerated.”

Her position, quite simply, is that courts are all-purpose problem solvers. If the politicians fail to “solve the problem,” the courts need to step in to do so.

To state the obvious, not everybody agrees about what is the “problem” (is the “problem” failure to tax enough for education, or is it failure to confront the teacher’s union?), and not everybody agrees that the liberal definition of a solution is the correct one.

If everybody agreed about the “problem” and the proper solution, legislatures would quickly pass the appropriate legislation.

And even if one thinks the liberal solution is the correct one, not everybody agrees that unelected judges should impose it on the citizenry.

But these are all issues that Harriet Miers doesn’t seem to have thought about. She has just accepted liberal shibboleths.