Religious Tests and the Court

One of the oddest things about the recent debates about the qualifications of Supreme Court nominees is the way that some of us have been tiptoeing around a subject that is theoretically off limits.

Even though Article VI, Clause 3, of the Constitution of the United States reads that "No religious Test shall ever be required as a qualification to any office or public trust under the United States," that hasn't stopped a lot of us from thinking a great deal about the faith of both John Roberts, recently sworn in as Chief Justice of the U.S. Supreme Court, and Harriet E. Miers, nominated to be an associate justice by President Bush.

Given the cut-throat partisanship that has characterized recent judicial nomination fights, it's not surprising that foes – and friends – of the nominees would seize upon anything that might hurt or help their cause. And in the case of Roberts and Miers, the lack of a record of written court decisions has left everyone scrambling for any evidence that could shed light on their philosophies and the ways they might rule in future cases.

Some Indiscreet Winks
As difficult as it might have been to understand Roberts – who was, after all, a life-long movement conservative and a Republican whose political sympathies were no mystery – Miers is a complete enigma to Republicans and Democrats alike.

With virtually no public record as an advocate for legal causes or stands on issues, all we have to go on is the fact that the president thinks she's hell on wheels. Considering her loyal service to Bush in Texas and Washington, he's got every right to think that way.

But that's left the White House with little ammunition to assure presidential backers that Miers is actually a conservative in any sense of the word, be it in terms of judicial philosophy or in her stance on social issues.

Among the winks and nods being thrown out to the GOP heartland is the fact that Miers is a deeply religious woman who converted to evangelical Protestantism from Catholicism.

Among those who have presumably received a few winks and nods is James C. Dobson, the head of the religious conservative group Focus on the Family. Dobson got himself in trouble with the administration when he said just that last week on his highly influential radio program.

"When you know some of the things that I know – that I probably shouldn't know – you will understand why I have said with fear and trepidation that I believe Harriet Miers will be a good justice," Dobson confided to his listeners.

Adding fuel to the liberal fire that will, no doubt, result from his indiscretion, Dobson made it clear what he was talking about when he added that, "If I have made a mistake here, I will never forget the blood of those babies that will die will be on my hands to some degree."

It could be that Dobson is bluffing about receiving assurances that, as his statement indicated, Miers would vote to overturn the Roe v. Wade decision that legalized abortion. It could also be that the person(s) who gave Dobson such assurances were themselves bluffing. But either way, a door has been opened to further debate about what exactly it is that she believes.

The irony is that while most supporters of the Roberts nomination were aghast at the notion of asking the future chief justice how he would rule on abortion or other controversial issues, some conservatives are now starting to make similar demands about Miers.

Keeping in mind the numerous examples of Republican presidents nominating unknown jurists to the high court only to discover later that they weren't actually conservatives, some on the right don't want to trust the president. Some, like anti-abortion stalwart Sen. Sam Brownback (Rep.-Kan.), want to hear from her own mouth that she's one of them.

But the whole point of the Miers' appointment appears to be that she is simply a blank slate, which will make it impossible for her to be "Borked" by liberals. If the impeccable Roberts was still opposed by half of the Senate's Democrats, what hope is there for consensus about anyone with a record of any kind?

And other than the fact that Miers is herself an evangelical and a trusted adviser to the religious conservative who lives in the White House, what do religious conservatives – or anyone else – have to go on? And that is precisely a direction the White House would be ill-advised to point toward.

Public officials must, of course, put their oath of office to defend the constitution above sectarian or denominational loyalties. But the idea that Chief Justice Roberts or even Harriet Miers must publicly renounce loyalty to the pope or to James Dobson, for that matter, in exchange for our trust is more than archaic. The notion put forward by some less-guarded critics that John Roberts' stance as a faithful Catholic ought to be taken into consideration when voting on his nomination was both out of bounds and offensive. Should some liberals act on Dobson's hint and now demand a religious test from Miers, that would prove just as wrong.

Prejudice Still Exists
One of the glories of modern American politics is the sense that the religious barriers that once prevented Catholics and Jews from rising to high public office are gone. Far from a drawback, Sen. Joseph Lieberman's public stance as a religious Jew helped his cause as the Democratic nominee for vice president in 2000.

And who really cares whether John Roberts or, for that matter, John Kerry, are Catholics? Most of the first century or more of American political history was besmirched by a powerful backlash of anti-Catholic bigotry that's still enshrined in many state laws that forbid aid to parochial schools. Yet Kerry's faith was not an issue in 2004, and the nasty innuendos about Roberts had no traction with either the public or the majority of the Senate.

But lingering beneath the surface of these debates are prejudices few of us feel comfortable talking about. The notion that many conservatives would not feel comfortable with a principled atheist or someone openly identified with a liberal denomination is unsettling.

Equally troubling is the fact that many on the other side, including some liberal Jews, harbor prejudices themselves about conservatives Christians. That such bias cloaks itself in a guise of victimhood that perceives everyone on the religious right – no matter what their actual beliefs – as potential oppressors is no excuse. Such attitudes, which fuel irrational fears about people who hold differing political and religious beliefs, are as rooted in ignorance and political opportunism as those sometimes put forward against Jews from the far right.

The Miers nomination is deeply problematic on a number of grounds that will be argued to death in the coming months. But let's keep religion out of it, one way or another, for that's a double-edged sword both sides of our political spectrum should be wary of. Harriet Miers' faith should not be used as a reason to grant her a seat on the Supreme Court. Nor is it sufficient reason to oppose her.

Jonathan S. Tobin is reachable via e-mail at: [email protected]



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