October 05, 2005
Wednesday

WASHINGTON - Abortion is the one of the most polarizing issues in politics, and the 1973 Roe v. Wade decision is viewed by many Americans - President Bush included - as an example of judicial activism. So you might expect that the subject would have come up in a conversation between the president and Harriet Miers, the White House counsel and Bush intimate whom the president has nominated to the Supreme Court.

But when he was asked if he had ever talked with Miers about abortion - even as a friend - the president gave the careful answer: "Not to my recollection."

Soon after the press conference, the abortion-rights group NARAL Pro-Choice America released a statement complaining that "President Bush refused to say whether his nominee for retiring Justice Sandra Day O'Connor's seat would uphold the fundamental freedom of a woman's right to choose. Contrary to President Bush's comments, Americans deserve to know whether Miers would shift the court in a direction that would put our rights and liberties in jeopardy."

Here we go again.

As they did with John Roberts, who was originally nominated to replace O'Connor, activists, senators and journalists are scrutinizing Miers' statements, public positions and even her church affiliation for clues about her position on a procedure that some Americans view as a matter of fundamental rights and others deplore as murder.

And, as in the confirmation process for Roberts, both the nominee and the president are making that deconstruction difficult, even as anti-abortion activists who form an important part of Bush's political base are being told they have nothing to worry about.

On Monday, Jay Sekulow, chief counsel of the American Council for Law and Justice founded by the Rev. Pat Robertson, said he would be spreading the word that as president of the Texas Bar Association in the 1990s, Miers had tried to roll back the American Bar Association's support for abortion rights.

Yet the fact that Miers didn't want the national lawyer's group to take a position on the divisive issue of abortion isn't proof that she was opposed to abortion rights herself. Her predecessor as head of the Texas bar association also thought the ABA position unwise, though he was personally pro-choice.

And Tuesday Bush, while insisting that "because of our closeness, I know the character" of Miers, insisted that he hadn't used an anti-abortion "litmus test" when he chose her to succeed O'Connor.

Some opponents of abortion took comfort from a quote from Texas Supreme Court Justice Nathan Hecht, a longtime friend of Miers, who said "her personal views are consistent with that of evangelical Christians."

But Hecht also said he couldn't predict how Miers might vote on a challenge to Roe v. Wade.

"If you're asking, 'Is she going vote to overrule Roe v. Wade, or Lawrence v. Texas (a 2003 decision striking down Texas' law against same-sex sodomy), I don't know that you can ask anyone that because you don't know until you are there."

Some opponents of abortion also see hope in the fact that Miers attends the conservative Valley View Christian Church in Dallas, whose pastor describes it as "very pro-life." But if liberal opponents of her nomination were to inquire about her religious beliefs, they would surely provoke a complaint by Republicans and that Miers was being subjected to an unconstitutional "religious test "for office.

When Roberts, a Roman Catholic, was asked if his religious views would prevent him from applying a precedent of the Supreme Court, he said no - an answer Miers also could provide without talking about the content of her faith.

Even if it were discovered that Miers had religious objections to abortion or had criticized Roe v. Wade, that would not guarantee that, as a Supreme Court justice, she would vote to overturn that precedent. In any case, Miers is likely to be just as circumspect in answering questions about Roe as Chief Justice Roberts was. The result in the Roberts confirmation was what Sen. Arlen Specter R-Pa., the chairman of the Judiciary Committee, called a "minuet" and what some Democrats denounced as an exercise in evasion.

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