A Second Supreme Court Nominee

By Dave Andrusko

We were 36 hours away from printing the October issue of National Right to Life News when the President announced that his choice to replace Justice Sandra Day O'Connor was White House Counsel Harriet Miers. This made for some last minute changes in story placement, but who's complaining? Certainly not me!

The President's announcement came the same day the Supreme Court's fall term began, with John Roberts firmly ensconced as its new Chief Justice. Abortion, physician-assisted suicide, and improper restraints on political speech highlight the list of issues for pro-lifers. (See stories, pages 6 and 9 and 24.)

Curiously, the much-anticipated showdown between Roberts and pro-abortion Senate Judiciary Committee Democrats failed to materialize. Part of the explanation was that with Chief Justice Rehnquist's untimely death, Roberts became Rehnquist's replacement rather than Justice O'Connor's.

Equally important in spreading balm on the potentially troubled waters was Roberts' sheer intellectual firepower. The surest test of a real high-octane intellect is the ability to explain excruciatingly complicated ideas in listener-friendly language. Roberts possessed that knack in abundance.

By the time you receive this edition of the "pro-life newspaper of record, we'll know a great deal about Harriet Miers. But what has surfaced to date is very reassuring.  As explained in the story on page one, Miers was a leader in the unsuccessful fight to convince the American Bar Association to change its pro-abortion policy back to neutrality.  She also reportedly donated money to a Texas pro-life group.

As a human being, she is by all accounts, a workaholic, somewhat on the shy side, an extremely bright 60-year-old woman who is devoted to her mother, her siblings, her siblings' children, and the President. If that weren't enough, Ms. Miers also has a long track record of working on behalf of civic organizations which assist the poor and the disadvantaged.

When he announced her selection, President Bush said something that was music to our ears. "Harriet Miers will strictly interpret our Constitution and laws. She will not legislate from the bench."

For her part, Miers added, "If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong, and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution."

Interestingly, she also meets the "real-world" criteria so many pro-abortion Democrats say they want in a Supreme Court nominee. As Patrick Leahy, the Ranking member of the Senate Judiciary Committee has said often, he wanted the President to consider nominees from outside the "judicial monastery."

For instance, Miers served for two years as an at-large candidate on the Dallas City Council. When then Governor Bush was looking for someone of impeccable integrity and credentials to clean up the scandal-plagued Texas Lottery Commission, he turned to Miers.  And, although never a judge, she has excellent legal credentials. In addition to holding the distinctions of being the first woman president of the Dallas Bar Association, and the first woman elected president of the State Bar of Texas, Ms. Miers was named one of the nation's 100 most powerful attorneys on numerous occasions by the National Law Journal as well as one of the 50 top woman attorneys.

Senate Majority Leader Bill Frist (R-Tn.) voiced optimism that Miers could be seated by Thanksgiving. Others talked about taking "as long as it takes." In the interim Justice O'Connor remains on the bench.

Right out of the chute pro-abortionists spoke cautiously. But what's the percentage in immediately going after Miers, who has not served as a judge and has no trail of legal opinions to cull through?

It would be nice to believe that the initial response is indicative—that Senate Democrats will focus on her qualifications and background rather than trying to squeeze out of Miers the kind of answers they failed to wring out of Roberts. But, in this instance, I'm from Missouri: they'll have to show me.

This edition of NRL News is like a cook's tour of issues that matter to the Movement. Will the High Court take a position contrary to what it took previously in Hodgson v. Minnesota?

In that 1990 case the Justices did not say that parental involvement laws required an all-purpose "health exception." Those trying to gut New Hampshire's 2003 parental notice law say it's time for the Court to hold that essentially any abortion-related law requires a health exception. In addition, the Court may or may not hear the decision of the 8th U.S. Circuit Court of Appeals, which upheld a lower court invalidating the Partial-Birth Abortion Ban Act.

The Justices will also decide whether the state of Oregon can pass a law that has the effect of outflanking federal law which generally prohibits the use of narcotics or other dangerous drugs except when prescribed for a "legitimate medical purpose." This debate has gone back and forth, within the federal government, and up and down the judicial ladder.

In 1998 Clinton Attorney General Janet Reno said that as long as a state law specifically authorizes lethal prescriptions, federally controlled drugs could be prescribed to kill patients. Oregon is the only state that allows these drugs to be used to kill patients.

Former Bush Attorney General John Ashcroft demurred. He sided with the reasoning found in the 1997 opinion of then-Drug Enforcement Administrator Thomas Constantine overturned by Reno. Constantine concluded that since assisting suicide is not "a legitimate medical purpose[,] . .. prescribing a controlled substance with the intent of assisting a suicide" violates federal law. Ashcroft's holding was successfully challenged in court and now is in the hands of the Supreme Court.

And if that didn't make for a full enough plate, the justices will hear two extremely important campaign finance cases. One involves a provision of the highly controversial McCain-Feingold law which squelched a genuine grassroots communication effort led by Wisconsin Right to Life. The other lower court decision upheld in principle Vermont's mandatory candidate expenditure and contribution limits.

The anti-life playbook only has a few chapters. The longest many times over is titled, "Foil popular opinion with an out-of-touch judiciary." All of this illustrates (as if we didn't know already) how enormously important it is who sits on the Supreme Court.

As long as they controlled the High Court, the world is their oyster. But since they believe control of the High Court is theirs almost by divine right, it's not surprising that the prospect of justices who respect the text and history of the Constitution is their worst nightmare.

Between issues of NRL News, we will keep you up to date at "Today's News & Views," found at www.nrlc.org. If you are not automatically receiving this daily product, just take a minute to go there and sign up.

This is a very exciting time to be a pro-lifer. Don't miss out on all the action. Read "Today's News & Views," and, by all means, subscribe to National Right to Life News.