Much will be made of the revelation in John Fund’s column that, during a conference call on October 3, two Texas judges told leading social conservatives that Harriet Miers would vote to overturn Roe v. Wade. The alleged assurances may well be a political bombshell, but I don’t see any impropriety in them. The judges may have been speculating or they may have been basing their “assurance” on what they have heard Miers say about the subject. Either way, there’s no problem. Speculation about how a nominee would vote on Roe and other big cases is a staple of the confirmation process. (In a radio appearance I was asked, but declined, to speculate about whether John Roberts, to whom I’ve spoken for a total of ten minutes, would vote to overturn Roe). The fact that these judges may have been in a position to offer educated speculation shouldn’t be held against them or the nominee. Nor is anything wrong if, in the past, Miers has told friends that she thinks Roe should be overturned. Some Senators have a fit when nominees claim not to have discussed this issue with their friends. If Miers did so, that’s normal, and there is no reason why her friends can’t use that information to predict how she will vote. Of course, such past conversations now will become the subject of inquiry during the confirmation hearings, which is fine too.
The conference call may have been the result of suggestions by Karl Rove that one of the judges, Miers’ friend Justice Hecht, could provide information about Miers’ status as an evangelical Christian and a “strict constructionist.” It’s natural that the White House would provide its key supporters with the names of “references” for Miers, but the Senate should also have access to these individual.
The question of whether the White House should be touting Miers’ religious status is more difficult. It absolutely should not be selecting nominees on that basis. Talking up nominees in this way strikes me a bad thing to do, though probably not constitutionally problematic or unethical.
In political terms, Fund’s information increases the likelihood of solid Democratic opposition to Miers and maybe a filibuster. I’ve always thought that, in the end, Democrats might well come down hard against Miers. First, quite apart from any assurances Dobson and others may have received, many liberals distrust nominees with deeply held traditional religious beliefs. Second, Miers was never going to testify in way that would give the Dems (and the influential interest groups that support them) comfort about Roe. Third, Miers is vulnerable in ways that Roberts was not, making it less risky to oppose her. Now, the likelihood of unified, forceful Democratic opposition is somewhat greater.
This may put conservative Republican Senators in a position to sink the nomination should they so chose. Indeed, if the Dems filibuster, conservative Senators could sink Miers without taking a strong anti-Miers position, simply by declining to get behind the nuclear option. But it’s not clear yet whether the Dems in the gang of 14, who can effectively prevent a purely Democratic filibuster, would support the filibuster of a nominee who is less demonstrably conservative than the next one President Bush is likely (one hopes) to send up.