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Wednesday, October 19, 2005 - Page updated at 12:00 AM

Mixed messages on abortion raise stakes for Miers

WASHINGTON — Supreme Court nominee Harriet Miers said she would support a constitutional amendment to ban abortion, except when necessary to save a woman's life, and would use her influence as an elected official to "promote the pro-life cause," according to a 1989 questionnaire she provided yesterday to the Senate Judiciary Committee.

Miers took the anti-abortion stance during her campaign for Dallas City Council in answers to a questionnaire from the anti-abortion group Texans United for Life.

But in separate written answers for the Judiciary Committee, Miers also conveyed views that raise questions about whether she would now vote to overturn the landmark 1973 Roe v. Wade ruling, which legalized abortions, or let it stand as settled precedent.

The mixed messages further confused senators on Miers' stance and raised the stakes for her performance next month during confirmation hearings. The revelations could plunge the White House into the kind of battle it believed it was avoiding with her nomination.

Miers, the White House counsel and a longtime Bush adviser, was thought to lack the kind of paper trail of other possible nominees, and because of that there were expectations that her nomination would provoke less of a fight.

Since President Bush announced her nomination two weeks ago to replace retiring Justice Sandra Day O'Connor, conservative lawyers and commentators have been harshly critical, contending that Miers lacked the intellectual heft and experience to be the 110th justice in the nation's history. Democrats have largely kept silent, letting conservatives slug it out. But several Democrats and women's groups voiced immediate dismay at Miers' anti-abortion views spelled out in the questionnaire.

"This raises very serious concerns about her ability to fairly apply the law without bias in this regard," said Sen. Dianne Feinstein, D-Calif., a member of the Judiciary Committee. "It will be my intention to question her very carefully about these issues."

The release of the questionnaire came as the White House was seeking to move away from talk about Miers' personal views and repackage her as an accomplished lawyer and adviser who, because she is not a judge, would bring needed perspective to the high court.

In the days after her nomination, the White House had sought to shore up support from social conservatives by stressing her religious views — a move that only deepened hostility among some conservatives troubled by her lack of a judicial record.

In her written answers to the Judiciary Committee, Miers said that believing a previous case was wrongly decided isn't reason enough to cast it aside. "The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling," she wrote.

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Her response echoed Chief Justice John Roberts' cautious language during his confirmation hearings. Roberts did not disclose his personal views on abortion. He declined, as had previous Supreme Court nominees, to discuss his views on Roe v. Wade, because the issue could again come before the court.

With the Miers nomination, the stakes are higher; she would replace the moderate O'Connor, who has provided the critical fifth vote opposing abortion regulations.

Her written response to the committee raised some Senate conservatives' eyebrows. "If a decision is wrong, it ought to be reversed, in my way of thinking," said Sen. Jeff Sessions, R-Ala., a Judiciary Committee member.

Others appeared reassured by her 1989 answers. "I took some comfort in that," said Sen. Sam Brownback, R-Kan., a Judiciary Committee member who has raised the most reservations about her nomination.

"It's a very strong pro-life position," added Sen. George Allen, R-Va., who also has been slow to support Miers.

The White House, aware that the abortion issue helps with conservatives but could turn away moderate Republicans and many Democrats, navigated carefully on Miers' abortion position.

"The role of a judge is very different from the role of a candidate or a political office holder," Bush spokesman Scott McClellan said. "And what she was doing in that questionnaire was expressing her views during the course of a campaign. The role of a judge is to apply the law in a fair and open-minded way."

Sen. Patrick Leahy of Vermont, the top Democrat on the Judiciary Committee, said Miers' answers were incomplete.

"So far, these answers heighten, rather than lessen, concerns about whether, as a Supreme Court justice, she would be able to maintain independence from this administration and future administrations," he said.

The latest revelations about Miers' views on abortion came a day after some confusion on the question involving Judiciary Committee Chairman Arlen Specter, R-Pa.

Specter initially told reporters Monday that Miers told him during a meeting that there is a right to privacy in the Constitution and that the Supreme Court had properly decided Griswold v. Connecticut, a 1965 precedent-setting case that established the legal foundation of privacy for Roe.

But Miers called Specter Monday evening and told him he'd misunderstood her .

Specter yesterday said that he intended to pursue that issue with Miers during her confirmation hearings.

"My recollection of our meeting differs from what Ms. Miers' recollection is," Specter said yesterday. "The fair thing to do is what I have done and that is to accept her statement. I may meet with her on other subjects but not on this conversation.

"She's had it. I've had it."

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