In my last post, I painstakingly put together an analysis of the religious tradition that Harriet Miers has embraced, concluding that it doesn’t much provide definitive evidence of her probable views on issues like abortion. Imagine my chagrin when I picked up the newspaper the next day to discover that her sometimes boyfriend and fellow parishioner at Valley View Christian Church, the right-wing Texas Supreme Court Justice Nathan Hecht, has been running around telling anybody who would listen that there’s zero doubt about Miers’ views on abortion.In my own long discourse on Miers religious background, I concluded that the nexus between her religion and her judicial philosophy would probably remain a mystery so long as “she and her friends and associates decide to keep it that way.” Well, Hecht would certainly qualify as someone in that inner loop; after all, he’s the one who introduced Miers to Valley View about a quarter century ago, when she, a lapsed Catholic, was seeking a renewed spiritual life.And indeed, Hecht’s assertions seem to be having an effect in some circles. The influential conservative evangelical Marvin Olasky (best known as the coiner of the phrase “compassionate conservatism”) has placed great stock in Hecht’s assurances in his cautiously pro-Miers blog posts. More importantly, the ultimate Christian Right bigfoot, James Dobson, in his bizarre radio remarks yesterday defending his early support for Miers, mentions his friendship with “the man who brought her to the Lord” as one part of the “confidential” information persuading him. This is clearly a reference to Hecht.But is Hecht speaking for himself, for Miers, and for the White House? Well, it’s not like he’s some loose cannon with no insider connections. Karl Rove ran his first campaign for the Texas Supreme Court. He knows the president well enough that W. has bestowed him with one of his famous personal nicknames: “Hector.” It sure looks like he’s on a mission from the administration to help preempt any Christian Right revolt against this nomination.But the weird thing is: it may not be working that well. Yes, the latest C.W. among the chattering classes is that the intra-conservative fight over Miers is one of those Main Street/Country Club fights pitting the GOP’s Christian Right base against snobby elitists who care more about a prospective justice’s legal resume than about her willingness to overturn Roe v. Wade. Indeed, some point to the non-Christians prominent in the conservative opposition to Miers (e.g., David Frum, Bill Kristol) and luridly suggest a big-time Theocon/Neocon split.I don’t think so. Aside from Frum, most of the National Review luminaries (e.g., Rich Lowry, Ramesh Ponnuru) who are prominent in the revolt against Miers are serious Right-to-Life Catholics. Nobody can out-Main Street Phyllis Schlafly, another Miers skeptic. Nobody’s more focused on cultural issues like abortion than Paul Weyrich. Tony Perkins, Dobson’s comrade-in-arms in the Colorado Springs Empire, has been notably neutral on the nomination.And even Dobson himself is expressing doubts and fears on Miers and the abortion issue, noting in the radio address that he will have “the blood of all those babies” on his hands if he guesses wrong about her views.You have to figure at this point that the White House is playing a dangerous double game on Miers, trying to get the word out to the Cultural Right that she’s a sure vote to overturn Roe, without providing any evidence that could blow up on her during the confirmation hearings. The fact that the Cultural Right is split on Miers is an indication this preemptive strategy has failed, which means that conservatives as well as Democrats are going to press her and the White House for clearer answers to their questions.My guess is that “Hector” will now shut up, leaving Rove and company to come up with a new strategy for threading this particular needle. It won’t be easy.
TDS Strategy Memos
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By Ed Kilgore
In looking at Dobbs v. Jackson Women’s Health Organization from many angles at New York, one I noted was the lonely position of Chief Justice John Roberts, who failed to hold back his conservative colleagues from anti-abortion radicalism:
While the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will go down in history as a 6-3 decision with only the three Democrat-appointed justices dissenting, Chief Justice John Roberts actually did not support a full reversal of Roe v. Wade and Planned Parenthood v. Casey. His concurring opinion, which argued that the Court should uphold Mississippi’s ban on abortions after 15 weeks of pregnancy without entirely abolishing a constitutional right to abortion, represented a path not taken by the other five conservative members of the Court.
When the Court held oral arguments on the Mississippi law last December, the conservative majority’s determination to redeem Donald Trump’s promise to reverse Roe v. Wade was quite clear. The only ray of hope was the clear discomfort of Chief Justice John Roberts, as New York’s Irin Carmon noted at the time:
“It seemed obvious that only Roberts, who vainly tried to focus on the 15-week line even when everyone else made clear it was all or nothing, cares for such appearances. There had been some pre-argument rumblings that Barrett and Brett Kavanaugh might defect, perhaps forming a bloc with Roberts to find some middle ground as happened the last time the Court considered overturning Roe in 1992’s Planned Parenthood v. Casey. On Wednesday, neither Barrett nor Kavanaugh seemed inclined to disappoint the movement that put them on the Court.”
Still, the Casey precedent offered a shred of hope, since in that 1992 case some hard and imaginative work by Republican-appointed justices determined not to overturn Roe eventually flipped Justice Anthony Kennedy and dealt a devastating blow to the anti-abortion movement. Just prior to the May leak of Justice Samuel Alito’s draft majority opinion (which was very similar in every important respect to the final product), the Wall Street Journal nervously speculated that Roberts might be undermining conservative resolve on the Court, or change sides as he famously did in the Obamacare case.
In the wake of the leak there was some reporting that Roberts was indeed determined not to go whole hog in Dobbs; one theory about the leak was that it had been engineered to freeze the other conservatives (especially Justice Brett Kavanaugh, who during his confirmation hearings had said many things incompatible with a decision to reverse Roe entirely) before the chief justice could lure them to his side.
Now it appears Roberts tried and failed. His concurrence was a not terribly compelling plea for “judicial restraint” that left him alone on the polarized Court he allegedly leads:
“I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further certainly not all the way to viability.”
Roberts’s proposed “reasonable opportunity” standard is apparently of his own invention, and is obviously vague enough to allow him to green-light any abortion ban short of one that outlaws abortion from the moment of fertilization, though he does seem to think arbitrarily drawing a new line at the beginning of the second trimester of pregnancy might work. Roberts’s real motivation appears to be upholding the Court’s reputation for judiciousness, which is indeed about to take a beating:
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
In his majority opinion (joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, along with Kavanaugh) Alito seems to relish in mocking the unprincipled nature of the chief justice’s temporizing position:
“There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party …
“The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt …
“The concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent … That is simply incorrect.”
One has to wonder that if Merrick Garland had been allowed to join the Court in 2016, or if Amy Coney Barrett had not been rushed onto the Court in 2020, Robert’s split-the-differences approach eroding but not entirely abolishing the constitutional right to abortion might have carried the day in Dobbs. But that’s like speculating about where we would be had Donald Trump not become president in 2017 after promising conservatives the moon — and an end to Roe.