Questions about a Questionnaire
Harriet Miers's thoughts on Roe v. Wade may be clearer than people suspected.
11:45 PM, Oct 18, 2005 • By TERRY EASTLAND
WHEN SHE RAN for the Dallas City Council in the spring of 1989, Harriet Miers sought the endorsement of Texans United for Life, according to its president, Kyleen Wright. Miers's interview with TUL's Political Action Committee was scheduled for April 11, 1989, and in preparation for the interview she completed a single-page "candidate questionnaire," one of the many documents the White House sent Tuesday to the Senate Judiciary Committee. Miers answered "yes" to every question, scoring 100 percent in the eyes of TUL.
The questionnaire was unsigned, and TUL was still searching its archives for the signed copy when I interviewed Wright late Tuesday afternoon. But she has no doubt that there was a signed copy. It was TUL's practice to ask candidates scheduled for interviews to bring with them several copies of the completed survey. The additional copies often were unsigned, and "it was not unusual," says Wright, for a candidate to retain an unsigned copy. "She would have had our enthusiastic endorsement," says Wright, who also was searching for that record.
Friends of Miers have described her as pro-life. But until now the evidence for that characterization has not been overwhelming. "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature?" By putting an X next to "YES." Miers not only endorsed a national policy that would outlaw abortion except in the hardest of the hard cases but also pledged she would "actively support the ratification" of the amendment in her state. Significantly, Miers had no reservations about using the amendment process spelled out in Article V to overrule the Supreme Court's 1973 decision in Roe v. Wade, which constitutionalized the abortion right.
The questionnaire also took into account the possibility that not Congress but the Court itself might be the moving party against Roe v. Wade. "If the Supreme Court returns to the States the right to restrict abortion"--by overruling Roe, as it would have to do--"would you actively support legislation that would reinstate our 1973 abortion law that prohibited all abortions except those necessary to prevent the death of the mother?" Of course, what the Court would return to the states were it to overrule Roe is the right to do with abortion as they pleased, restricting but also permitting it. By answering yes to this question, Miers clearly favored restrictive abortion law. In fact, she declared her active support for the very law (a Texas statute) struck down by the court in Roe v. Wade, a case which arose from Dallas and was decided three years after she graduated from the law school at Southern Methodist University. It is hard to imagine that Miers was not aware of the case even as a freshly-minted lawyer, and certainly not when she completed the TUL questionnaire.
As for the other questions, Miers's answers to them revealed her to be opposed to the use of public funding of abortion ("except where necessary to prevent the death of the mother"); opposed to the use of city funds or facilities by any persons or groups that promote, encourage, or provide referrals for abortion; and committed to vote "against the appointment of pro-abortion persons" to City Boards or Committees that deal with health issues. Miers also agreed to refuse the endorsement of any group supporting abortion-on-demand; to participate in press conferences and also to use her influence as an elected official to promote the goals of the pro-life movement; and to participate in pro-life rallies and special events.
Kyleen Wright observes that Miers ran for an at-large seat--and not one where pro-life voters might have been concentrated. "She risked alienating as many people as she attracted," and maybe more, says Wright, since the pro-life position "didn't enjoy the support it has now" in Dallas. Wright credits Miers with taking a courageous position driven by principle. "She didn't have to take a position" on abortion to win a seat on the City Council. Miers, not then a confidant of George W. Bush, having first met him only a few weeks earlier, according to White House spokesman Jim Dyke, was elected and served a single term.
The 1989 questionnaire has changed TUL's view of the Miers nomination. Until Tuesday it had expressed skepticism about the prospect of Associate Justice Miers. It was definitely in the "wait-and-see" camp. But now Wright speaks with evident enthusiasm. "This is very good news. . . . It speaks for itself."
But how it speaks today is the question. The questionnaire will doubtless become a much-quoted text during the confirmation hearings, with senators in both parties trying to find out whether Miers is still pro-life. If she is, she will be the first person with stated pro-life views to be named to the Court since Roe. Of course, it is possible to be for abortion rights as a policy matter and against Roe as a matter of constitutional law. Inevitably, the crucial question in this much controverted area is what Miers thinks about the Court's abortion jurisprudence, her personal views of abortion to the side. And for that reason she will be asked (as John Roberts was) whether she agrees with the reasoning and the results in Roe (and Planned Parenthood v. Casey, the 1992 case which affirmed the "essential holding" of Roe).
Miers has been telling senators this week that no one knows her views on Roe v. Wade, and the smart betting is that she will not use the hearings to declare them. Whether that position will satisfy many Democratic senators seems unlikely, and the questionnaire may only deepen their worry, even as it heartens social conservatives. After all, by constitutional amendment if not by a Court overruling, Miers supported Roe's demise.
Terry Eastland is publisher of The Weekly Standard.