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.
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Editor’s Corner
By Ed Kilgore
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May 3: Democrats Should Call Out Trump’s Big Lies on Abortion
Everyone knows that Donald Trump can’t be trusted on abortion policy (or many other things). But his particular lies on abortion are worth noting, as I explained at New York.
There is no exercise more exhausting and probably futile than examining a Donald Trump speech or social-media post for lies, half-truths, and incoherent self-contradictions. But it’s important on occasion to highlight some very big whoppers he tells that are central to his political strategy. It’s well known that Trump’s own position on abortion policy has wandered all over the map, and it’s plausible to suggest his approach is entirely transactional. Now that he’s staked out a “states’ rights” position on abortion that is designed to take a losing issue off the table in the 2024 presidential election, he’s telling two very specific lies to justify his latest flip-flop.
The first is his now-routine claim that “both sides” and even “legal scholars on both sides” of the abortion debate “agreed” that Roe v. Wade needed to be reversed, leaving abortion policy up to the states:
This claim was the centerpiece of Trump’s April 9 statement setting out his position on abortion for the 2024 general election, as CNN noted:
“In a video statement on abortion policy he posted on social media Monday, Trump said: ‘I was proudly the person responsible for the ending of something that all legal scholars, both sides, wanted and, in fact, demanded be ended: Roe v. Wade. They wanted it ended.’ Later in his statement, Trump said that since ‘we have abortion where everybody wanted it from a legal standpoint,’ states are free to determine their own abortion laws.”
This is clearly and demonstrably false. The three “legal experts” on the Supreme Court who passionately dissented from the decision to reverse Roe are just the tip of the iceberg of anguish over the defiance of precedent and ideological reasoning underlying Justice Samuel Alito in the majority opinion in Dobbs v. Jackson Women’s Health Organization. The Society of American Law Teachers immediately and definitively issued a “condemnation” of the Dobbs decision. When the case was being argued before the Supreme Court, the American Bar Association filed an amicus brief arguing the constitutional doctrine of stare decisis required that Roe be left in place. None of these views were novel. Back in 1989 when an earlier threat to abortion rights had emerged, 885 law professors signed onto a brief defending Roe.
Sure, there was a tiny minority of “pro-choice, anti-Roe” liberals over the years who claimed resentment of the power of the unelected judges who decided Roe would eventually threaten abortion rights (not as much, it turns out, as the unelected judges that decided Dobbs). And yes, there have always been progressive critics (notably Justice Ruth Bader Ginsburg) of the particular reasoning in the original Roe decision, but by no means have any of them (particularly Ginsburg) favored abandoning the federal constitutional right to abortion even if they supported a different constitutional basis for that right. So Trump’s claim is grossly nonfactual and is indeed not one that any self-respecting conservative fan of Dobbs would ever make.
The second big lie that Trump has formulated to defend his latest states’-rights position is that he’s just supporting the age-old Republican stance on the subject, as he has just asserted at Truth Social:
“Sending this Issue back to the States was the Policy of the Republican Party and Conservatives for over 50 years, due to States’ Rights and 10th Amendment, and only happened because of the Justices I proudly Nominated and got Confirmed.”
Yes, of course a growing majority of Republicans have favored reversal of Roe as a way station to a nationwide ban on abortion, but not as an end in itself. The GOP first came out for a federal constitutional amendment to ban abortion from sea to shining sea in its 1980 party platform, and every single Republican presidential nominee since then has backed the idea. There have been disagreements as to whether such a constitutional amendment should include exceptions for pregnancies caused by rape or incest. But the last GOP presidential nominee to share Trump’s position that the states should be the final arbiter of abortion policy was Gerald R. Ford in 1976, as the New York Times reported at the time:
“[Ford] said that as President he must enforce the 1973 Supreme Court ruling that forbids states to ban abortions. But he has come out in favor of a constitutional amendment that would overturn that ruling and return to the states the option of drawing up their own abortion laws.”
Ronald Reagan, who challenged Ford’s nomination in 1976 and was already a proponent of a “pro-life” constitutional amendment, and the GOP formally adopted that position in 1980; four years later, it adopted its long-standing proposal that by constitutional amendment or by a judicial ruling the protection of fetal life under the 14th Amendment should be recognized and imposed on the country regardless of what states wanted. Anti-abortion leader Marjorie Dannenfelser noted this well-known history in a not-so-subtle rebuke to Trump’s revisionist history, as NBC News reported:
“’Since 1984, the GOP platform has affirmed that 14th Amendment protections apply to unborn babies and endorsed congressional action to clarify this fact through legislation,’ Marjorie Dannenfelser, the president of Susan B. Anthony Pro-Life America, said in a statement to NBC News. ‘Republicans led the charge to outlaw barbaric partial-birth abortions federally, and both chambers have voted multiple times to limit painful late-term abortion. The Senate voted on this most recently in 2020. In January 2023, House Republicans also voted to protect infants born alive during an abortion.’”
It’s pretty clear that anti-abortion activists know Trump is lying about both Roe v. Wade and the GOP tradition and will support him anyway. But the rest of us should take due notice that the once and perhaps future president’s word on this subject, including his current pledge to leave abortion policy to the states, cannot be trusted for even a moment. Absent the abolition of the Senate filibuster (which, lest we forget, Trump backed as president out of impatience with the Senate’s refusal to bend the knee to his every demand), there isn’t going to be a complete federal ban on abortion in the foreseeable future. But Trump can be counted on to use the powers of the presidency to make life miserable for women needing abortion services, among the many “enemies of the people” he wants to punish.