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.
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."