We keep hearing assurances that Harriet Miers is pro-life.
That is not, strictly speaking, what I’m interested in. It is true that I am ardently pro-life and that I am on record in the Regent University Law Review arguing that changes in our medical knowledge now fully vindicate treating unborn humans as persons under the 14th Amendment. However, what I am interested in is getting a judge who will not twist the Constitution into a vessel for imposing one’s preferences on the American people as was so clearly done in Roe. Roe was wrong on history, wrong in what it said it didn’t need to know, and wrong in its constitutional interpretation. Those penumbras and emanations resonating off various parts of the Constitution were ridiculous and we all know it. If they weren’t, then we should have “discovered” massive protection from economic regulation in the contracts clause.
Miers’ friend Judge Hecht has said that one could be pro-life and still believe the constitution requires upholding Roe. I don’t think so, not because of any special quality of being pro-life, but simply because no intellectually honest person can or should believe the constitution requires upholding Roe.
At a minimum, Justice Scalia is right and the abortion decision should revert back to the states. His position is not related to his pro-life viewpoint. His position depends entirely on his theory of constitutional interpretation, which is the only theory that keeps us out of the situation of having five of nine justices essentially rule as philosopher-kings.
So, what we are interested in is Ms. Miers’ understanding of constitutional interpretation, not her political position re: abortion. I would rather have a jurist with a correct understanding of the constitution than I would one who believes the right thing policy-wise about abortion.