Miers and the Duck Test:

Alan Keyes for President.
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Posted: October 24, 20051:00 a.m. Eastern
© 2005 WorldNetDaily.com
The latest news about Harriet Miers' record hardly seems likely to assuage the concerns of conservatives in and out of the Senate who already have serious doubts about her conservative credentials. As president-elect and president of the Texas Bar Association, she supported (passionately according to one report) a scheme for preferential treatment of minorities and women that surely would pass the duck test as a quota system in the judgment of most conservatives.
Doubtless Miers' supporters will stick with their reassurances about her conservative philosophy – whatever her personal views about quotas – while implying that in any case this is just one of a range of issues that she will have to deal with on the Court. Unfortunately, it's also just one of a series of indications that Harriet Miers' "personal views" are seriously at odds with conservative ideas and principles.
Judging by the record, she had no personal qualms about supporting a lecture series at SMU that touted leftist feminists as role models of achievement. She had no personal compunctions about supporting an organization for young girls that encouraged acceptance of lesbianism. She also felt personally inspired to volunteer disparagement of membership in the conservative Federalist Society.
Of course, when answering a campaign questionnaire as she ran for the Dallas City Council, she did support a constitutional ban on abortion, and she did buy a ticket to a pro-life dinner when appearing there could help her candidacy. The record begins to suggest that though Miers is personally opposed to conservatism, she believes it's her duty to disregard personal conviction when doing so will advance her career.
In this case, however, the problem with the "personal views" argument lies in the tenuous distinction between personal and official convictions. The oath of a Supreme Court justice is binding upon personal conscience. If such an official believes that a certain position corresponds to right and justice, that official is oath bound to act in good conscience.
The Roe v. Wade case, for example, turned on the question of whether the individual in the womb must be regarded as a person or not. Justice Blackmun, after reviewing the views of different religions and philosophies, and taking account of what he claimed was the position of "the law" in the United States and elsewhere, reached the conclusion that in the womb the infant is not a person. This was not a conclusion about the Constitution. It reflected the (presumably) conscientious views of the justices who concurred in his opinion.
If, in conscience, a justice disagreed with that conclusion – i.e., he conscientiously believed that, because all are created equal, from conception the infant must be regarded as a person – he was bound to oppose their opinion. None of them could contend that they had to follow the Constitution, whatever their personal convictions, because the conclusion about what was constitutional required a prior conclusion of conscience about the personhood of the infant in the womb. That conclusion, by the way, was not specific to the facts or circumstances of the Roe case itself.
As Blackmun acknowledged, it necessarily reflected broad religious and philosophic ideas. The justices had to assess these ideas in light of their own reason, common sense and moral judgment.
A justice who takes an oath binding upon personal conscience – then disregards the dictates of conscience in the performance of her duties – forswears her oath. She perjures herself, in the literal sense of the word. Conservatives like James Dobson presumably believe that Harriet Miers will vote to overturn Roe v. Wade should the opportunity arise. But Roe v. Wade should be overturned only if it was wrongly decided, and it was wrongly decided if the infant in the womb must be regarded as a person.
If in good conscience Harriet Miers believes the infant is a person, she would be bound in conscience to overturn Roe. Otherwise, she would not be. If in her judicial actions she acts against her conscientious convictions, she cannot claim any constitutional requirement, since the requirement doesn't exist until the issue of conscience has been decided one way or the other. Obviously, therefore, her personal convictions (i.e., the views she holds as a matter of personal conscience) cannot be regarded as irrelevant to the issue of her fitness for the Supreme Court. In fact, if she (or any other nominee for that matter) gives the impression that in her judicial actions she will disregard her conscientious convictions, she raises serious doubts about the integrity with which she will perform her constitutional duties.
Judging by her actions, Harriet Miers believes that diversity, proven by percentages that reflect the general population, justifies discrimination based on race and gender. This belief is seriously at odds with conservative principles, or what President G.W. Bush would call conservative judicial philosophy. The conservative argument can be simply summarized. Our Constitution derives from the principle that, since all men are created equal, physical or material differences do not give some people prior claim to be superior to and rule over others. Government must therefore be based upon the consent of the governed, as registered through institutions based upon elective representation.
Representative self-government rests on the premise of human moral equality. In the public realm, discrimination that relies on physical or material differences as such is unjust because it violates this premise. Hence the ban against racial and gender discrimination. Of course, it is permissible to discriminate among individuals based upon their performance; their fitness for a given function; their proven capacity to achieve a goal, etc. Physical and material differences may play a role in these results, but the results are the acceptable basis for discrimination, not the physical characteristics themselves.
If Harriet Miers passionately supports quota-driven preferences for women and minorities, she must believe that, under certain circumstances the premise of moral equality can be set aside. But this would mean that, in her view, respect for moral equality is a matter of calculation, not a fundamental issue of principle. If some preferred outcome is achieved by disregarding it, she appears willing to do so.
But respect for the premise of moral equality is not just the key to conservative opposition to quotas. It is the principle of conservative opposition to abortion as well. As we have noted, the argument in Roe v. Wade turns on the personhood of the infant in the womb. The majority in that case denied personhood on account of the infant's imperfect physical development. They discriminated on the basis of physical characteristics, which were taken in and of themselves as sufficient grounds to treat the child in the womb as an inferior being with no unalienable right to life.
The premise of moral equality is treated as a matter of numerical calculation rather than principle, so that questions of how long, how many and how much decide the critical issue of human worth and dignity.
Harriet Miers' promotion of quota-style affirmative action thus raises new doubts about her grasp of and adherence to the conservative judicial philosophy President Bush claims on her behalf. The White House has encouraged people to judge Miers on her record. But as we learn more about her actions, the gap between her apparent beliefs and any reasonable understanding of conservative philosophy grows ever larger.
I fear it has already become too large to be overcome by her performance in Senate hearings. Her actions speak so loudly it may be too difficult to lend credence to mere words. As the bard wrote, "words to the heat of deeds too cold breath give." President Bush has handed conservatives in the Senate a nomination that may be too hot to handle credibly. For their sake and his, it might be better if Harriet Miers takes action now to allow the president to offer a different choice.
Be sure to visit Alan Keyes' communications center for founding principles, The Declaration Foundation.