Slate's Jurisprudence: Selling Miers to Capitol Hill

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Supreme Court nominee Harriet Miers toured Capitol Hill Monday as part of this week's strategy to introduce her to members of the Senate Judiciary Committee. Alex Chadwick speaks with Slate legal analyst Dahlia Lithwick about what senators are learning about Miers from meetings and from her answers to a written questionnaire.


Supreme Court nominee Harriet Miers today answered questions that had been put to her in written form by the Senate preparing for her judicial confirmation hearings, questions about her judicial philosophy and the role of federal judges. But along with the Senate questionnaire, other revelations about her views on abortion are coming to light today. This, even as the president's team is trying to show the nation that Ms. Miers is more qualified for the job than her detractors claim. Most of those detractors, we note, are on the political right. Joining us is Dahlia Lithwick, legal analyst of the online magazine Slate and for DAY TO DAY.

Dahlia, this questionnaire just out, what can you tell us about it that's noteworthy?


Well, that most of it is actually not noteworthy, you know, little things that we might have expected. She lists her publications. They're largely pragmatic. They are not constitutional philosophy. Little side note: She had her license to practice law briefly suspended when she forgot to pay her bar dues. It happens to the best of us. And a little essay on judicial activism, where she goes out of her way to say, you know, the role of courts is to interpret the law, not to make it. We've heard that before.

What's really, I think, going to capture headlines in the short term is that she filled in another questionnaire in 1989. This was sent out by Texans United for Life, and it was appended to this Senate questionnaire. It's important to explain that because she did not state the following things in response to the Senate. She said them in 1989 in response to Texans United for Life. She did say at that time, however, that she would support a constitutional amendment banning all abortion except for in cases where the life of the mother was threatened. That's a very dramatic stance on abortion. She said she would oppose the use of public monies for abortion. She also said she would use her influence to keep, quote, "pro-abortion" people off city health boards and commissions. These are pretty strong statements, and you can bet you're going to hear a lot about them in the coming days.

CHADWICK: How much weight would the senators have to give these 1989 opinions in this questionnaire?

LITHWICK: Well, you know, the White House is already taking pains to say, look, she didn't answer that questionnaire as a judicial candidate, so they should be dismissed. They are not pledges or promises on how she'd vote on a case. But I do think they tell you a lot about where her head is on the question of abortion itself. That raises the question: Can she oppose abortion personally, which clearly she does, and still vote on abortion cases as a purely legal matter? And that really is unknowable. That's going to be something that senators will try to probe. They're not going to get an answer to it.

CHADWICK: This has been such a fascinating story, because the political right has risen up to say, `We don't like this nominee,' and Democrats and the left have been fairly quiet. Now maybe these 1989 views on abortion, which are fairly conservative, it seems to me, maybe that's going to reverse the political trend on her.

LITHWICK: Well, certainly I think this will give directly reassurance to those groups who desperately sought reassurance when all this began, the James Dobsons, who just wanted to hear that sentence, `Harriet Miers opposes abortion.' But they want to hear another sentence, too, Alex. They want to hear, `And she's going to reverse Roe V. Wade.' And it's not clear, as I said, that just become someone opposes abortion--and this was what John Roberts said so effectively: Just because a person opposes abortion doesn't mean they don't put value in the notion of stare decisis, keeping old precedent alive for stability and continuity. So I think it's going to be Harriet Miers' position that you can't extrapolate from those views--They're old; they were in a questionnaire--how she would vote in future cases.

CHADWICK: Opinion and analysis from Dahlia Lithwick, who writes the Jurisprudence column for Slate magazine and is a regular contributor to DAY TO DAY. Dahlia, thank you.

LITHWICK: My pleasure, Alex.

CHADWICK: I'm Alex Chadwick. Stay with us on DAY TO DAY from NPR News.

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