If you say about Alice that she is a practicing Christian, are you saying something on the basis of which someone could reasonably take action? Well yes, in a way. It would mean that the Women’s Christian Temperance Union might send one of their annual appeals to her. What else? You could guess that she would disapprove of an unmarried man and woman sharing a home, although–Alice sighs resignedly–that doesn’t diminish her affection for her son Jobie, who does exactly that. Might it tell us that Alice from time to time listens in on the radio to a talk by Billy Graham? It might. But 54 percent of Protestant Americans don’t go regularly to Sunday services, and many can go years without hearing the word of the Lord. Can we guess that Alice is a Republican? Certainly not: Many practicing Christians are Democrats. So why would a constituent nudge a senator along in favor of confirming Alice for a judicial opening?
Because Christians feel a little upbeat about fellow Christians. Jews feel so about fellow Jews, and nobody doubts that Muslims feel so about fellow Muslims. The excitement on the matter of Harriet Miers’s religious beliefs was taken to hysterical lengths by New York Times columnist Thomas Friedman. His device was a fancied item from the Iraq News Agency making the acidulous point, through a (fictional) secular Sunni judge, that here we are, in America, hearing political advisers urge the confirmation of Harriet Miers by citing her Christianity. This brings on apoplectic resentment. “After two years of being lectured to by U.S. diplomats in Baghdad about the need to separate ‘mosque from state’ in the new Iraq,” Friedman’s story goes, this Muslim official was “stunned when he heard President Bush telling Republicans that one reason they should support Harriet Miers for the U.S. Supreme Court was because of ‘her religion.’”
Mr. Friedman was carried away. He quoted the sentiments of his Iraqi judge: “How would you feel if you picked up your newspapers next week and read that the president of Iraq justified the appointment of an Iraqi Supreme Court justice by telling Iraqis: ‘Don’t pay attention to his lack of legal expertise. Pay attention to the fact that he is a Muslim fundamentalist and prays at a Saudi-funded Wahhabi mosque.’ Is that the Iraq you sent your sons to build and to die for?”
Well, the first response would reflect the lesson in the Latin aphorism, “Quod licet Jovi, non licet bovi.” What is permitted to Jove is not permitted to your cow. That liberating injunction rescues thought from paralogisms. “If you can love her, why can’t you love me?” “If John is worth $10 per hour, why isn’t Ronnie?”
Fidelity to the Christian faith presupposes an attachment to equality. Muslim fundamentalism does no such thing. A member of the Communist Party would not be thought fit for the Supreme Court, and a Muslim would have to make his case by renouncing what many Muslims kill for, which is their interpretation of the sacred commission of the prophet.
Ms. Miers is now pursued because in 1989 she said that she believed in the right to life, which means, presumably, that she does not believe that Roe v. Wade was persuasively reasoned. Well, neither did Justice White or Chief Justice Rehnquist, both of whom dissented in Roe v. Wade. Is there any evidence that such a dissent contaminated their judgment when serving, as they continued to do for years, as members of the Court? Is there the least suggestion that to have dissented from the reasoning in Roe commits a new member to voting to reverse it?
None whatever, and Ms. Miers will certainly make that point when she is questioned in November. One worries about the quandary she is in–an open invitation to traduce her own thinking, in order to gain favor. That is cause for individual concern. There is reason to fear for the community of critics who seem willing to believe that a Christian justice will pursue Christian doctrine to the point of ignoring the evolved thinking of the Court. And the broad offense is to think of all religions as “equal” in their bearing on judicial conduct. The moment has not come, but it is around the corner, when non-Muslims will reasonably demand to have evidence that the Muslim faith can operate within boundaries in which Christians and Jews (and many non-believers) live and work without unconstitutional distraction.