When President Bush announced Harriet Miers as his pick for Sandra Day O’Connor’s replacement on the U.S. Supreme Court, the call immediately went out from many to “trust but verify” her nomination. Most Americans trust President Bush’s track record on judicial nominees, but because Miers is not a judge, and because it appears she has not opined substantively to any extent on any constitutional issues, there is a greater need to verify the depth of her commitment to the Constitution.
Of course, being a judge is not a prerequisite for being committed to the Constitution and being qualified to serve on the Supreme Court. The late William Rehnquist was evidence of that.
But with limited indicators of her commitment to the Constitution and how she interprets it, Miers’s defenders needed to ease concerns that she would become another Sandra Day O’Connor, Anthony Kennedy, or worse yet, David Souter. To achieve this, they seized on her Christian faith and her church in Texas to bolster the claim that she would be faithful to the Constitution and that she was an excellent choice to serve on the High Court.
Why not? Such an appeal has worked before. Back in 1981, Texas evangelist James Robison vouched for O’Connor, and in 1987 Anthony Kennedy got his priest’s imprimatur. But despite those assurances, O’Connor and Kennedy betrayed their advocates and embraced the view that the Constitution is a living, breathing document that should evolve with the times. Their subsequent rulings speak for themselves.
In our secularized culture where relativism abounds, we need more people of faith like Miers devoting themselves to public service, so that they can share their faith, hope, and love in service to their country. Yet given the disappointments of O’Connor and Kennedy, and the recent attacks on judicial nominees because of their faith, it is bizarre that Miers’s defenders have so quickly turned to her faith as a reason to support her nomination.
Such a defense is imprudent for two reasons. First, it provides an unfortunate distraction from what should be a robust debate about Miers’s commitment to the Constitution. And second, it establishes a double standard on the issue of raising a nominee’s religion during the confirmation process, posing a risk for Miers and creating a dangerous precedent for future nominees.
When Miers’s defenders began to plug her faith as a reason to support her confirmation, Washington Post columnist E. J. Dionne
pounced on Republicans. “Miers has almost no public record,” wrote Dionne. “Don’t worry, the administration’s allies are telling their friends on the right, she’s an evangelical Christian.” Dionne is right to note that such appeals to Miers’s Christianity are inconsistent with conservatives’ previous insistence that personal religious faith is irrelevant to nominee qualifications.
But perhaps Dionne himself should step back from his comments during the Roberts nominations. Back in August, Dionne wrote: “At this moment in our history, religion is playing an important part in our public debates. If Roberts’s religious views are important to him, why should they be off-limits to honest discussion?”
The Left continues to pile on. Senator Schumer and others are now demanding that Dr. James Dobson be called to testify at Ms. Miers’s confirmation hearings. Let’s hope her well-intended defenders haven’t opened up a Pandora’s Box of religious inquisition.
A nominee should be perfectly entitled to live his faith as he pleases . But even so, Miers’s defenders would have been well-advised to exercise more patience and discretion rather than making such a big issue of her religion.
How Miers lives her faith should have no place or bearing in her confirmation hearings. After all, Article VI, Clause III of the Constitution guarantees that nominees will not be disqualified from office because of their faith.
Of course, this does not mean that no questions can be asked about morality, faith, and the law. Professors Stephen B. Presser and Charles E. Rice have suggested a line of questioning during the Roberts’s nomination that strikes just about the proper balance. They wrote: “It is legitimate for the Senate to explore… [a nominee’s] philosophy of judging, and perhaps even… [his] beliefs about the connection between law and morality. It is true, as a matter of fact, that the earliest federal judges believed that we could have no order without law, no law without morality, and no morality without religion, and these may be general matters [which] could be enlightening to… Senate questioners.”
But with Miers’s defenders making such a power play over her faith, the chance of this balanced sort of questioning occurring in committee seems slim.
The bottom line is that while some might think Miers’s religion provides an early indicator of her view of the interplay between morality and the law, her faith does not do much to bolster the case that she would be faithful to the Constitution. By itself, it provides no reason to support or oppose her nomination. Faith is too precious to be used as a trumpet or as a sword by those who either support or oppose a nominee.
– Joseph J. Cella is president of Fidelis, a Catholic-based advocacy organization.