Wednesday, October 05, 2005

Miers: The faith card

In recent years, the religious faith of judicial nominees has become a big issue. Some conservatives have accused Democrats of bias against "people of faith" and have made the argument -- absurd, in my opinion -- that it is "religious bigotry" to question an appointee's political/ideological views if they happen to be faith-based. (Would that principle extend to a judge who opposed the death penalty or military conscription based on religious convictions?) When John Roberts was nominated to the Supreme Court and some critics raised the question of whether his strong Catholic faith would affect his ability to rule impartially on issues involving Catholic morality (read: abortion), religious conservatives cried foul and argued that it was unfair and "chilling" to presume that Roberts's decisions would be governed by his personal religious views rather than law and constitutional principle.

Well, now we have this:

To persuade the right to embrace Ms. Miers's selection despite her lack of a clear record on social issues, representatives of the White House put Justice Hecht on at least one conference call with influential social conservative organizers on Monday to talk about her faith and character.
(Justice Nathan L. Hecht, now on the Texas Supreme Court, is a former colleague of Miers's who was apparently close to her at the time of her conversion to born-again Christianity.)

The article goes on to say:

Some evangelical Protestants were heralding the possibility that one of their own would have a seat on the court after decades of complaining that their brand of Christianity met condescension and exclusion from the American establishment.

In an interview Tuesday on the televangelist Pat Robertson's "700 Club," Jay Sekulow, chief counsel of the Christian conservative American Center for Law and Justice, said Ms. Miers would be the first evangelical Protestant on the court since the 1930's. "So this is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court," Mr. Sekulow said.

As David Bernstein puts it at The Volokh Conspiracy: "[T]he president sends his minions to drum up support based on her personal religious philosophy." But if Republicans can use Miers's personal faith to reassure the base that she will vote "the right way" on social issues, then why can't those who don't agree with that agenda be suspicious of her for the same reason?

Mind you, based on what we currently know, Miers doesn't seem likely to legislate her personal morality from the bench (her favorable attitude toward adoptions by same-sex couples is a case in point). She strikes me as -- for better and worse -- a pragmatist first and foremost. What interests me, however, is the double standard. I'm reminded of an old Soviet joke: A petitioner with some grievance goes to the Kremlin and demands to see Lenin. "Are you crazy?" an official tells him. "Lenin's been dead for a long time!" "I see," says the petitioner. "So when you need him, he lives forever -- but when I need him, he's dead!" ("Lenin lives forever" was a ubiquitous Soviet propaganda slogan.) Similarly, it seems, a nominee's faith can be relevant when it's convenient for the Republicans, but not when it's convenient for the Democrats.

Sorry, guys. If it's sauce for the conservative goose, it's sauce for the liberal gander.

Update: A reader at The Volokh Conspiracy makes the same point; David Bernstein agrees.


J. R. P. said...

First, you shouldn't take the impression the NYT leaves as really worthy of serious consideration. That would be like accepting the Boston Globe's proposed storyline, hook, and

Anyway, I think you miss a key point here: the people complaining about Mier's nomination are generally much the same people who complained about asking about Robert's Catholicism.

The group making these arguments pro-Miers are institutional Republicans, who happen to be making a religious argument in this instance.

These are _not_ the same as the conservative/religious ideological axis, many of whom are on the same wavelength as a Thomist/Aristotlean in their view of law (they might even identify as such if they weren't mostly Protestant). This latter group would have been perfectly happy with a long-record originalist regardless of their personal faith, because that kind of constitutional interpretation falls in line with this understanding of law.

That is, even if an originalist sometimes rules 'the wrong way' (a way you don't like), they won't likely rule in an 'insane way', and if you are in the majority, you can often manage to fix the problem 'the right way' by passing a tighter, clearer law. The idea that the axis shares is that there is nothing inherently _broken_ about the constitution given the original intent, but it can become quickly broken by judicial overreaching and penumbras.

Finally, I suspect that the unexpressed concern of the axis is that, without a clear record and clear judicial philosophy, there is a danger is that Ms. Meir's will 'grow in office' (become Souterized in some way we can't predict). At least, that's what gives me the heebie-jeebies.

Anonymous said...

what gets me is that meirs' little conferences with the wingnuts in private are obviously where she's telling them what bush already knows: that she'll vote roe out the first day she's in office, then get started on reinstating dred scott. the problem is, no document to this effect will ever come before the senate. bush will just get his support in secret

Cathy Young said...

The group making these arguments pro-Miers are institutional Republicans, who happen to be making a religious argument in this instance. These are _not_ the same as the conservative/religious ideological axis...

Not sure you're right. James Dobson? Jay Sekulow?

angry young man -- hold on, now. No one said that Miers herself has held any teleconferences with religious conservatives.

that she'll vote roe out the first day she's in office, then get started on reinstating dred scott.

Sorry, but this kind of rhetoric makes me tune out the speaker. This is the left-wing equivalent of "the liberals want to ban the Bible and legalize sex with children."

Anonymous said...

i bring up dred scott because, of all people, bush himself did in the 10/8/04 debate as a panacean reference for his bible-thumping base. As Timothy Noah pointed out in a Slate article:

"To the Christian right, 'Dred Scott' turns out to be a code word for 'Roe v. Wade.' Even while stating as plain as day that he would apply 'no litmus test,' Bush was semaphoring to hard-core abortion opponents that he would indeed apply one crucial litmus test: He would never, ever, appoint a Supreme Court justice who condoned Roe."

Here's a link to the article:

And while miers is not having the meetings--that would be a grotesque demonstration of inconsideration for the nation, even for bush--bush and his minions have definitely informed his base of what they know but which will never come out in the senate hearings: that miers will overturn roe, being a born again, but there's no nasty paper trail to let the Dems know for sure.

Cathy Young said...

Well, what on earth does this have to do with reinstating Dred Scott since Bush specifically cited it as an instance of a wrong decision?

Anonymous said...

reinstate: oops. i misspoke.