Columnist EJ Dionne attempts to argue that many on the right are being hypocritical in their use of Harriet Miers' religious affiliation as a tool to discern her judicial philosophy.

Shortly after Bush named John Roberts to the Supreme Court, a few Democrats, including Sen. Richard Durbin, D-Ill., suggested that the nominee might reasonably be questioned about the impact of his religious faith on his decisions as a justice.

Durbin had his head taken off. "We have no religious tests for public office in this country," thundered Sen. John Cornyn, R-Texas, insisting that any inquiry about a potential judge's religious views was "offensive." Fidelis, a conservative Catholic group, declared that "Roberts' religious faith and how he lives that faith as an individual has no bearing and no place in the confirmation process."

But now that Harriet Miers, Bush's latest Supreme Court nominee, is in trouble with conservatives, her religious faith and how she lives that faith are becoming central to the case being made for her by the administration and its supporters. Miers has almost no public record. Don't worry, the administration's allies are telling their friends on the right, she's an evangelical Christian.

Dionne, of course, may have a minor point in noting the hypocrisy of objecting to Durbin's questions while offering assurances based upon Miers' evangelical Christianity. But he is is wrong on the much more substantial question of religious tests -- for neither the Durbin question nor the evangelical assurance constitutes a religious test of any sort -- and certainly not as understood by the Framers of the Constitution.

I pointed this out some months back, responding to an editorial in the New York Sun.

Now we all know that these religious questions are primarily a proxy for questions about abortion and the religion clauses of the First Amendment. Again, these are proper areas for scrutiny. If a hypothetical nominee were, for example, a member of the Christian Identity Movement (White Supremacy dressed up with a facade of theology), would it not be proper to inquire about the nominee's ability to uphold the Fourteenth and Fifteenth Amendments to the US Constitution, as well as the Civil Rights Acts enacted pursuant to them? Of course it would -- and the failure of the nominee to give "the right answers" would be a more than sufficient basis for rejection without running afoul of Article VI.

But how does that square with the many weighty and serious quotes from the Founders regarding religious tests for office?

Coxe, in his examination of the Constitution ("No religious test is ever to be required of any officer or servant of the United States. The people may employ any wise or good citizen in the execution of the various duties of the government") to William Lancaster of North Carolina ("... we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years, I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it" ) to Luther Martin ("there were some members so unfashionable as to think that a belief of the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that in a Christian country it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism") to Edmund Randolph ("A man of abilities and character, of any sect whatever, may be admitted to any office or public trust under the United States"), the Founders debated the religious test from every angle and then, by an overwhelming margin, excluded it.

The answer, of course, is to understand what constituted a religious test in the mind of an educated American in the latter part of the eighteenth century -- to strictly construe the original intent of the text at the time of its writing and adoption. These were men whose context was fundamentally British, and whose historical points of reference were usually those which came from that heritage. It is no accident, for example, that the rights protected in the Bill of Rights are a reaction to the abuses of the British monarchs over the previous two centuries. Viewed in that context, the prohibition on religious tests is designed to prevent the imposition of "test oaths" which excluded members of certain sects from holding public office or exercising certain rights. The most famous of these were the anti-Catholic oaths which forced individuals to repudiate certain tenets of the Catholic faith and the authority of the pope. Those who refused to take such an oath were barred from public offices and faced certain restrictions on their liberties. Such is not the case with Durbin's questions, which could NEVER rise to the level of a "religious test" in the sense intended by the Founder. Durbin's refusal to vote for a candidate because of those views also does not violate the religious test provision, any more than my refusal to vote for a Satanist does.

Mr. Durbin insisted to reporters last week that he wasn't interested in applying a "litmus test" to judicial nominees. The senator told Judge Roberts, "If you will be honest and forthcoming, you're going to find a warm reception from our side of the aisle, even if we disagree with you on any given issue." But two days later, Mr. Durbin went on NBC's "Meet the Press" to say that if Judge Roberts did not find an implied right to privacy in the Constitution, on which the right to abortion is based, "It would disqualify him in my mind."

Now notice, please, that Durbin's basis for giving or denying his vote is NOT religious, but is instead based upon constitutional interpretation. That is a legitimate basis for a Senator to use in making a decision. After all, a nominee who stated that he believed that Plessy is right and Brown is wrong would merit rejection. While I disagree with Durbin's litmus test (and it is a litmus test, despite his protestation to the contrary), I don't have a problem with rejecting a nominee on the basis of jurisprudential principles, regardless of the source of the "deeply held personal beliefs" which lead to such a conclusion. I wish we on the conservative side had made a practice of doing so over the last few decades.

I'll say about Miers what I said about Roberts -- to the degree that inquiries and assertions regarding her religious beliefs are the basis for discerning a judicial philosophy and/or her basic competence to do the job of a Supreme Court Justice, there is no religious test being imposed.

(Another commentary on Dionne at Captain's Quarters)

Posted by: Greg at 05:30 AM | Comments (2) | Add Comment
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