In Speeches From 1990s, Clues About Miers Views

Cass R. Sunstein, a professor of constitutional law at the University of Chicago Law School, said that while the words left room for varying interpretations, "one possible reading is that she believes you should basically give liberty the benefit of the doubt and that when moral issues are disputed and scientific evidence is unclear, government should stay its hand."

Activists on both sides of the abortion debate said that Miers's speech also appears to contradict a position she took just four years earlier, when she was running for the Dallas City Council.

Then, she told activists at the Texans for Life Coalition she personally believed that abortion was murder and filled out a questionnaire for an antiabortion group in which she checked a box pledging to "actively support" a constitutional amendment banning abortions except to save a woman's life.

Former NARAL Pro-Choice America president Kate Michelman said the right to self-determination is at the heart of the case law granting a woman's right to an abortion.

"If you take what she said at face value, you would conclude that she recognizes the right of a woman to choose an abortion as a matter of self-determination," Michelman said. "She seems to be a woman who over time is pulled in different directions, as many of us are, as she searched for answers."

The question, Michelman said, is whether Miers has changed and would accept that medical advances in terms of a fetus's viability have "somehow progressed to such a degree as to support criminalization of abortion."

Kyleen Wright, president of the Texans for Life Coalition, said she found Miers's principle of self-determination "troubling" and also was concerned about Miers's choice of words in characterizing the abortion debate. "In the pro-life movement, we don't recognize a right to decide who lives or dies," Wright said.

Miers's views on prayer in public schools, delivered in the same speech, are somewhat clearer but still leave room for interpretation. Again, she applied the principle of self-determination. No one, she said, should be able to "oppressively require a student to participate in religious activities against their will, but if a student on his or her own chooses to express him or herself in religious terms, that should not be prohibited."

Legal experts said that Miers left unaddressed how she would decide whether a student was freely expressing religious beliefs or being coerced, a question that is often the basis of school prayer battles. The Supreme Court, for instance, has ruled that student-led prayer before a football game is unconstitutional, and that prayer at a graduation ceremony also was coercive even though students did not have to attend.

In her Senate questionnaire, Miers said judges should be "arbiters of disputes, not policy makers."

"Parties should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom and correctness of their preferred course," she said in the document.

But she offered a different view of the judiciary in the 1993 speech to Dallas women executives and another one a few months later.

At the time, Texas was embroiled in an education funding dispute. The Texas Supreme Court had threatened to shut off most school funding if the legislature could not quickly devise a plan for fair funding. Some lawmakers pushed to remove school funding from the court's jurisdiction.

But Miers blamed the legislators for what she called an "unacceptable" school funding plan and for ducking tough issues such as imposing a state income tax.

"My basic message here is that when you hear the courts blamed for activism or intrusion where they do not belong, stop and examine what the elected leadership has done to solve the problem at issue," she said.

At a speech later that summer titled "Women and Courage," Miers went further. Citing statistics that showed Texas's relatively high poverty rates, Miers said the public should not blame judges when courts step in to solve such problems.

"Allowing conditions to exist so long and get so bad that resort to the courts is the only answer has not served our state well," she said. "Politicians who would cry 'The courts made me do it' or 'I did not do that -- the courts did' should not be tolerated."