In Speeches From 1990s, Clues About Miers Views

By Jo Becker
Washington Post Staff Writer
Wednesday, October 26, 2005

Supreme Court nominee Harriet Miers said in a speech more than a decade ago that "self-determination" should guide decisions about abortion and school prayer and that in cases where scientific facts are disputed and religious beliefs vary, "government should not act."

In a 1993 speech to a Dallas women's group, Miers talked about abortion, the separation of church and state, and how the issues play out in the legal system. "The underlying theme in most of these cases is the insistence of more self-determination," she said. "And the more I think about these issues, the more self-determination makes sense."

In that speech and others in the early 1990s when she was president of the Texas Bar Association, Miers also defended judges who order lawmakers to address social concerns. While judicial activism is derided by many conservatives, Miers said that sometimes "officials would rather abandon to the courts the hard questions so they can respond to constituents: I did not want to do that -- the court is making me."

Miers, who was one of the first women to become a partner at a major Texas law firm, also showed sympathy for feminist causes, referring to the "glass ceiling" faced by professional women and urging her audience to support female candidates. She recited a list of national and state female leaders that crossed the political spectrum, including Gloria Steinem, then-first lady Hillary Rodham Clinton and Sen. Kay Bailey Hutchison (R-Tex.).

The speeches offer some of the clearest insights yet into Miers's thinking on volatile social issues that can make their way to the high court. Miers, currently the White House counsel, spent the majority of her career in private practice and has a limited public record on many of the controversial topics -- including abortion and affirmative action -- that senators said they want to question her about at a confirmation hearing to begin Nov. 7.

Miers's speeches, which she provided to the Judiciary Committee, prompted a wary reaction from conservatives. Many conservative organizations have criticized her selection and several have called on President Bush to withdraw her name, saying there are other more qualified, conservative legal scholars and jurists who should be nominated.

"This is going to be very disturbing to conservatives because I think it shows that she is a judicial activist," said Mathew D. Staver, president and general counsel for the Liberty Counsel, which frequently argues constitutional cases from the conservative perspective. "This concept of self-determination could clearly be read in support for things like abortion or same-sex marriage, and it's a philosophy that cuts a judge loose from the Constitution."

White House spokesman Jim Dyke said the speeches are "entirely consistent" with the conservative doctrine of judicial restraint Miers recently outlined in a questionnaire for senators. While he said some conservatives "may be in a snit" about Miers's comments on self-determination, the context was clear: "This is someone who sees an appropriate role for the courts and an appropriate role for the legislature."

In an undated speech given in the spring of 1993 to the Executive Women of Dallas, Miers appeared to offer a libertarian view of several topics in which the law and religious beliefs were colliding in court.

"The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's [sic] right to decide for herself whether she will have an abortion," Miers said.

Those seeking to resolve such disputes would do well to remember that "we gave up" a long time ago on "legislating religion or morality," she said. And "when science cannot determine the facts and decisions vary based upon religious belief, then government should not act."

While the speeches may not be an accurate predictor of how Miers may rule as a justice, abortion rights opponents and advocates and legal analysts said yesterday that Miers's professed belief in self-determination could suggest that she favored a woman's right to decide whether to terminate a pregnancy.

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