HIGH COURT: Miers Out, Alito Up

WASHINGTON — Pro-life Catholics commended White House Counsel Harriet Miers for withdrawing her nomination to the Supreme Court of the United States.

Then, as this story went to press, President Bush announced his replacement nomination: Judge Samuel Alito of Pennsylvania. If nominated, he would be the fifth Catholic on the present court, and the 11th Catholic justice in history.

Miers’ withdrawal won praise from Catholic court watchers.

“This is good news,” said James Bendell, West Coast counsel for the American Catholic Lawyers Association, which defends freedom of religion. “I remain at a loss to make any sense out of the Harriet Miers nomination. This appointment represents the most important decision this president has to make, by far, because of the balance of the court.”

Bendell believed Miers could not be trusted.

Others were less critical but still applauded Miers for stepping aside.

“We praise the courage of Harriet Miers in her decision to withdraw her name,” said Austin Ruse, president of the Culture of Life Foundation in Washington, D.C.

Ruse said he hoped the next nominee would have a well-documented record as a judicial conservative who will strictly interpret the Constitution.

Alito may fit that bill. In the early 1990s, he was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit Court struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their husbands.

The case went before the Supreme Court, which struck down the spousal notification provision of the law. Then-Chief Justice William Rehnquist cited Alito's dissenting opinion in his own dissent.

President Bush let little time pass to choose another nominee to take the place of soon-to-retire pro-abortion Justice Sandra Day O’Connor to the high court. His nomination of Miers became bogged down in criticism from his own political base that Miers was an unknown who had no judicial experience — or legal paper trail. The president had tried to assure pro-life constituents that he knows Miers well and knows what's in her heart.

As confirmation hearings drew near, however, statements Miers made in the past surfaced and alarmed much of the pro-life community. In a speech to the Executive Women of Dallas in 1993, she said, “The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual to decide for herself whether she will have an abortion.”

Later in the speech, she told the audience that society has given up on “legislating religion or morality,” and added: “When science cannot determine the facts, and decisions vary based upon religious belief, then government should not act.”

The Family Research Council said the speech should have alarmed the White House before Miers was nominated, as her words reflect a sectarian view rather than one that harkens back to the Declarations of Independence and its promise of the inalienable right to life.

Kris Kobach, former chief counsel for U.S. Attorney General John Ashcroft, told the Register that some pro-life conservatives apparently wanted a nominee who had done more than check a pro-life box on a questionnaire.

“It's extremely difficult to defend life from the bench, when confronted with the precedents established by Roe v. Wade and Planned Parenthood v. Casey,” said Kobach, a professor of Constitutional Law at the University of Missouri, Kansas City.

Kobach said pro-lifers are unwilling to take any chances regarding the next Supreme Court justice, and Miers wasn't considered a sure thing.

“This is a pivotal appointment, and its effect will be measured for decades,” said Kobach. “We have three solid originalist judges in [Antonin] Scalia, [Clarence] Thomas and now [Chief Justice John] Roberts. We have five who've shown themselves to be inclined toward the living, breathing document theory of the Constitution, which is a view essential to the survival of Roe v. Wade. If we're to have a majority of originalist thinkers on the court, the vacancy must be filled with an originalist with a paper trail. For originalists, it's an opportunity that cannot be missed.

Bendell said few lawyers have deep knowledge of the Constitution, and even fewer have the intellectual prowess and discipline to view it from an originalist perspective, in which principle outweighs cultural convenience and political expedience.

“The average lawyer doesn't even dabble in concepts like originalism, equal protection and due process,” Bendell said. “The average lawyer deals in easements, deeds, wills, taxes, and collection — not the egghead stuff that comes before the Supreme Court. That's why we need a nominee with a track record — a proven Constitutional scholar and intellectual.”

Though Bendell says the Supreme Court can have its most profound effect on the culture by overturning Roe v. Wade — which forces states to allow abortion — he said the court's balance has other important ramifications for Catholics.

“We're constantly dealing with the abuses of so-called ‘separation of church and state,’ which isn't even mentioned in the Constitution and doesn't exist in Constitutional law,” Bendell said. “This abuse leads to all sorts of restrictions for Catholics regarding free speech, especially when it comes to pro-life expressions.”

Kobach said Alito's credentials are so strong that he doubts the nominee's Catholic faith will be a hindering factor. However, before the nomination, he expressed concern that the Miers nomination elevated religion as a consideration.

“They made her religion something of a qualifier, whereas during the Roberts confirmation the White House was saying the nominee's religion is irrelevant,” Kobach said. “Now it will be hard to tell opponents, who may oppose a Catholic on the grounds that he or she is Catholic, to ignore the religion of the nominee.”

Wayne Laugesen is based in Boulder, Colorado.