HARRIET MIERS AND THE LAW OF UNINTENDED CONSEQUENCES -- By John Collins
by John Collins    Tue, Oct 18, 2005, 01:13 PM
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John Collins

          By now, I’m sure Harriet Miers is wondering:  “With friends like these, who needs enemies?”  The President’s nomination of Ms. Miers has caused great consternation among certain conservatives who had been looking forward to a judicial Armageddon---Senate confirmation hearings where the forces of righteousness conquer evil, all played out on national television for the world to see. 
            One "law" that has been overlooked is this: the law of unintended consequences--will Miers' nomination produce the intended results expected by evangelicals such as Pat Robertson, Jerry Falwell and James Dobson?  It's worth pondering.
           The President has been on the campaign stump pushing his nominee, especially among evangelical ministers and their fellow travelers assuring them of her conservative bona fides.  

            Even Texas Supreme Court Justice Nathan Hecht has been on the t.v. and radio talk shows touting her faith and that she, personally, and her church, are firmly opposed to abortion—the key legal concern of evangelicals.  In all fairness, Justice Hecht has been quick to add that he doesn’t know how she’ll vote on a particular case---even one involving Roe v. Wade.
            What is clear is that some in the conservative family dispute really want a “sure thing” --- not a judge who will look at the evidence and the law and make an independent decision.   The unvoiced question is basically this:  “We don’t know how she’ll vote.”
            But does any President know how his nominees will vote?  History, our only guide in these matters, says "No."  And there is a very good legal reason----it’s illegal and a violation of both state and federal law for anyone—including the President—to obtain binding commitments from judicial nominees to vote a particular way or in favor of a specific result.

            Thus, the public dance goes on about the lack of knowledge about how Miers will vote once arriving on the court.  In private, other assurances and tunes are being played by the White House staff.
            Of course, there’s another reason for judicial uncertainty touched on by Justice Hecht.  Basic honesty requires that judicial nominees can't commit in advance since they haven’t reviewed the evidence, studied the appellate record, read the briefs or heard the lawyers’ arguments.  This kind of hard work is what appellate judges do---they decide specific cases---concrete cases based on a specific record forged in the heat of legal combat in the trial court and the intermediate appellate courts.
            One valid point made by one of Miers' leading critics, George Will, is that the public should know what procedures she will employ in deciding cases.   In other words, how will she go about the difficult process of deciding tough cases?  What rules of construction will she employ especially when the evidence is evenly matched, the statutory or constitutional language ambiguous and the relevant precedents less than clear?  
            
If reports are correct that one of her judicial heroes is Warren Burger, then Ms. Miers may approach a case from a solidly conservative approach, giving great weight to the text and history of a particular constitutional provision, but not totally ignoring the realities of modern-day life.  This time-honored approach troubles the “litmus test” crowd since Burger voted with the majority in Roe v. Wade and did little or nothing to overturn it in his subsequent years as Chief Justice.
In an excellent new book, Radicals in Robes, Why Extreme Right-Wing Courts Are Wrong for America, University of Chicago law professor Cass R. Sunstein describes the various philosophical approaches taken over the years by judges deciding cases on our highest court.  He correctly points out that the law of unintended consequences can at times plague the court as an institution as well as the litigants battling out the abortion issue.  He notes the irony that the 1973 Roe v. Wade decision probably led to the defeat of the Equal Rights Amendment and, in essence, demobilized the women’s movement while at the same time activating the strongest opponents of that movement.
        Sunstein persuasively argues that if Roe were overruled, Democrats would almost certainly be helped and Republicans would almost certainly be hurt. If abortion really does become an active issue again – if abortion might actually be a crime - then countless Americans would likely vote for pro-choice candidates. In other words, if Harriet Miers (and a court majority) votes to overrule Roe this would immediately create a major crisis for the Republican Party.  Red states would undoubtedly turn blue or at least stronger shades of purple.  For faith-based Republicans, this would be both an "unintended consequence" and the legal equivalent of the dog catching the pickup.
        In the good news department for the President's nominee I count only two or three Republican Senators that have publicly expressed reservations about her nomination.  Most Senate Democrats are watching the ideological jousting from the sidelines.  If the vote were taken today, Harriet Miers would definitely be confirmed.  That is also the most likely result in any event.

        However, as that great public philosopher, Yogi Berra, once said: it's awfully tough to make predictions, especially about the future.

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