Miers, Abortion, and McClellan's Wrong Answer

I don't make much of yesterday's story suggesting that Harriet Miers supported the ratification of a Human Life Amendment to the Constitution.  (See, e.g., here.)  Perhaps that's because I don't think it's unreasonable for an individual either to oppose abortion or to think Roe v. Wade was wrongly decided as a matter of constitutional law -- although, conversely, I don't think it's unreasonable for a Senator to vote against a nominee on that basis.

What I did find interesting about yesterday's story was the White House response.  Spokesman Scott McClellan told the press that "[t]he role of a judge is very different from the role of a candidate or a political officeholder."  It seems to me McClellan (who has never been a terribly smart or effective spokesman, in my view) gave the wrong answer to the question, while failing to give an entirely obvious right answer.

McClellan's actual answer was wrong because the role of a judge is not very different from the role of a political officeholder.  Both judges and other officeholders take an oath to support and defend the Constitution, and both are, at least in an ideal world, expected to exercise some degree of seriousness and independence in determining whether a particular law is constitutional or not.  Granted that most politicians use the existence of judicial review as a backstop to justify voting on constitutionally questionable measures -- even while castigating the judiciary for its expansive role in judicial review -- but serious politicians ought to understand that they are independently obliged to make their own constitutional determinations when casting a vote.  So if Miers the officeholder had cast a vote to seriously restrict or overturn abortion rights, or pledged to do so as a candidate, that would say something about her constitutional views on abortion -- or at least suggest a tacit approval of the role of the judiciary in mediating disputes on such issues.  McClellan therefore is wrong in his defense of Miers.

But not wrong altogether.  He could have offered the right response to questions about Miers' pledge.  Miers pledged to support the ratification of a constitutional amendment on abortion.  Constitutional amendments are the only time when the people, speaking through the political process, can change the rules of the constitutional game altogether.  But constitutional amendment is not the same as constitutional interpretation.  It is perfectly consistent to favor amending the Constitution so that X now reads Y, while believing that under the current Constitution, X means X.  Justice Scalia could favor a flag-burning amendment, but also believe that until such an amendment was ratified, the current First Amendment would bar laws criminalizing flag-burning.  Thus, Miers' view on a Human Life Amendment, while surely a tea leaf to be read for her views on abortion, ultimately is not relevant, strictly speaking, to the question of how she would rule on abortion under the current Constitution.  McClellan was thus right to defend Miers -- but he offered the wrong reason.