James Taranto is missing a key point in his analysis of whether a pro-lifer could conceivably support Roe v. Wade. The impetus for Taranto’s analysis is the revelation that Harriet Miers expressed support for a human life amendment to the Constitution in 1989. The amendment would have prohibited abortion except in cases where the mother’s life is in danger. In response to questions, the White House said that this did not suggest how Miers would rule on abortion law if confirmed to the Supreme Court.
It is true that many people are pro-abortion but anti-Roe–that is, they oppose both the criminalization of abortion and the creation of an imaginary constitutional right to abortion. The opposite position, however, seems far less tenable. Most people who support Roe do so on policy grounds; that is, they like the outcome and are indifferent to the Constitution. The only way we can see to reconcile support for Roe with support for the Human Life Amendment is if one has a highly expansive view of the Supreme Court’s role–believing that it has near-dictatorial power over social policy, capable of being overridden only by the very difficult process of amending the Constitution.
Clearly, someone who is pro-life is likely to be against Roe, and, for the sake of argument, let us say that this is an iron-clad rule. Still, Taranto should not ingnore the possibility that a judge who personally thinks Roe was wrongly decided in 1973 may still vote to uphold it now. A judge who thinks Roe was initially wrongly decided could still be sympathetic to the argument that younger American women have grown up in a world in which abortion is a constitutional right and therefore determine that it would be wrong to suddenly overturn Roe. In other words, a personally pro-life judge could agree that Roe is a “super duper precedent,” to borrow Sen. Arlen Specter’s corny phrase. I’m not saying I necessarily hold this view myself, but it is a position I can see a judge taking, if nothing else but out of fear of rocking the boat.
With that said, it is absurd for the White House to tell the public at large that it is unclear how Miers would rule on issues such as abortion, while touting her religious beliefs in a bid to reassure conservatives that she’d rule with their side on such issues. This is the game that gets played when you’re dealing with a so-called “stealth” nominee, whose judicial views are unknown. The strategy worked with Roberts because conservative opposition to him was tepid. But with many prominent conservatives publicly criticizing the Miers nomination, the White House has been forced to send much more overt signals to the conservative base. This has made the balancing act a lot more difficult.