Harriet Miers' paperless record is supposed to deprive Democrats of spitballs to throw at her Supreme Court confirmation hearings. And it will. But at the moment, her blank-slate persona is giving some conservatives fits. They weren't prepped in advance for Miers the way they were for the nomination of Chief Justice John Roberts, and they're especially testy about her refusal to say where she stands on abortion.
To vouch for Miers' pro-life and evangelical credentials, the White House has trotted out Texas Supreme Court Justice Nathan Hecht, who says he has been her friend and "off and on" date for years. The man is everywhere—on a conference call with right-wing ministers and activists the day Miers' nomination was announced, on the blog of the Christian magazine World, on NPR, and in your newspaper. Hecht's ministrations have converted evangelical leaders like James Dobson into Miers supporters. So, where do Hecht's pro-life bona fides come from—what's his judicial record on abortion?
In February 2000, Hecht's court was faced with interpreting its state's "judicial bypass" law. Texas bars doctors from performing abortions on pregnant girls without first notifying their parents. But, as the U.S. Supreme Court has required, there's an escape clause. Girls who want to have abortions in Texas without telling their parents can appear before a judge, to whom they have to prove that they are "mature and sufficiently well informed" to make the decision on their own; or that notifying their parents isn't in their best interests; or that they might be physically, sexually, or emotionally abused if they were to tell.
The first parental-notification case to come before the Texas Supreme Court was an appeal by a 17-year-old who'd been denied a bypass because the trial court thought she wasn't mature and well-informed. Five of the justices ruled that the girl had to show three things: that she had gone to a health-care provider and understood the health risks of abortion; that she understood "the alternatives to abortion and their implications"; and that she was "aware of the emotional and psychological aspects" of ending a pregnancy. The 17-year-old hadn't presented the required evidence, the state Supreme Court ruled. It sent the case back to the trial judge to give her another chance.
That result seriously troubled Hecht (as well as Priscilla Owen, whose appointment to a federal appeals court last spring helped to trigger near meltdown in the Senate—and whom, if you can believe it, Hecht reportedly also used to date). In a strongly worded dissent, he argued that the majority had set the bar for a bypass far lower than the Legislature had intended. He attacked the notion of giving bypasses to a girl who had gotten "all her information from abortion proponents," noting that the 17-year-old "had not spoken with a member of the clergy." He worried that "any competent attorney" would be able to "easily script testimony" that would meet the court's standard as set out. Finally, Hecht objected to the majority's decision to give the girl a second try in court, "especially since she will have no trouble improving her case."
Ten days later, another pregnant girl who'd been denied a bypass came before the state Supreme Court. She had testified to the trial judge that she was afraid of her father, who she said had slapped her in the past (though not beaten her). The majority of the justices sent this case back for a second round as well. Hecht again dissented, noting that the 16-year-old had not consulted her pastor or "considered marrying the father of her child." He accused the court of standing between teenagers and their parents: "Catatonic parents may be told that their daughter is having an abortion, the Court says; the [Parental Notification] Act spares all others the shock."
A few months later, Hecht had a new weapon: an amicus brief from 56 of the 181 members of the Texas Legislature (about 31 percent) stating that the majority of the Supreme Court had gotten the law wrong and were allowing bypasses too readily. When the majority nevertheless stuck with its earlier interpretations in the next bypass case, Hecht wrote, "The Court adamantly refuses to listen to all reason." Attorney General Alberto Gonzales was then a Texas justice, and he retorted by calling the insistence of the dissenters—who again included Owen—"unconscionable judicial activism." That's the remark that got Gonzales into trouble with the right when it caused controversy for Owen during her confirmation process, possibly costing him the Supreme Court nomination Miers now enjoys.
Hecht's stance in these cases seems sincerely motivated by his concern about respecting the rights of parents and preventing abortions that teenagers could later regret. "The last thing the State should want to hear is a minor's belated cry: 'Why didn't someone tell me?' " he wrote in his first dissent. His concern for the girls before the court, however, didn't prevent him from publicly recounting every detail of their supposedly confidential testimony. Hecht's preferred standard for granting a bypass—requiring girls to talk to counselors (particularly religious ones) who oppose abortion and testify at length about "the family, social, psychological, emotional, moral, and religious implications of the abortion decision," as he put it—probably would stop a lot more abortions. It would also impose a burden on women that's not permissible, at least under current U.S. Supreme Court law. Texas has not pushed the issue by rewriting its bypass statute.
As Will Saletan details here, Hecht has promised that Miers opposes abortion and has given money to the pro-life cause. I called him to ask if he remembered discussing his opinion in the Texas abortion cases with her. Hecht said they'd probably "talked more about the dynamic on the court" than about the substance of the opinions. "I don't remember if I asked her if she thought I was right. But if I had, she probably would have said yes," he paused and chuckled, "just out of politeness." That's far too coy to satisfy Miers skeptic and Kansas Sen. Sam Brownback. Hecht needs to show his lady some more love.