This piece caught my eye while researching Harriet Miers. It involves her position on the issue of gay rights, as indicated on a survey submitted to a homosexual group when she ran for city council in Dallas in the late 1980s.

Miers answered "Yes" to the survey question, "Do you believe that gay men and lesbians should have the same civil rights as non-gay men and women?"

She was noncommittal on several other questions, saying, for example, that she would be willing to discuss the need for a law prohibiting discrimination in housing or public accommodations against people who had AIDS or were HIV-positive.

Asked whether qualified candidates should be denied city employment because they are gay or lesbian, she said, "I believe that employers should be able to pick the best qualified person for any position to be filled considering all relevant factors."

She answered "No" without elaboration when asked whether she believed, both as a citizen and a legislator, that criminalization of the private sexual behavior of consenting adult lesbians and gays should be taken out of the Texas criminal code.

She said Dallas had a responsibility in AIDS education and treatment and that she favored more money being spent in that area "assuming need and resources. I do consider the AIDS illness as a serious total community problem." She underlined "total."

Now I donÂ’t know how her views have changed over the last 15-20 years. IÂ’m told she underwent a religious conversion experience sometime during that period. But it does raise a red flag for me. Does she believe that these issues should be taken out of the political arena via judicial decree, or does she recognize that her policy preferences are not constitutional law? Will she be an activist on these issues, or will she, like Justice Felix Frankfurter, hew to the Constitution despite her liberal policy preferences while still in the political arena? After all, one can support non-discrimination laws as politically desirable while not seeing that policy as mandated by the Constitution.

But I guess that is where my problem comes from. There is no record of rulings, no history of scholarly articles, that give us any clue as to the restraint of activism of a hypothetical Justice Miers. She is a cipher on such matters. And for that reason I continue to oppose her nomination for the court.

Posted by: Greg at 02:00 PM | No Comments | Add Comment
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