In a recent op-ed piece in the Washington Post, columnist E. J. Dionne, Jr. raises an interesting point.
In response to Senator Richard Durbin's suggestion that a potential Supreme Court nominee may reasonably be questioned as to the impact of his faith on his decisions of justice (shortly after John Roberts was nominated), Senator John Cornyn retorted "We have no religious tests for public office in this country." The article notes that Senator Cornyn insisted that any inquiry about a potential judge's religious views was "offensive." The article continues by noting that the conservative Catholic group Fidelis declared that "Roberts' religious faith and how he lives that faith as an individual has no bearing and no place in the confirmation process."
I think this is how it should be. I don't think one's religion - in my opinion a very personal matter - should be considered in determining whether a potential Justice is qualified to rule under the law. I would hope that any Justice would be able to divorce the religious aspect of their value system from the rule of law when drawing a conclusion (sounds like strict constructionist talk, I know).
So why would the, conservatives who summarily dismissed the notion of religion as a consideration with Justice Roberts, take the very opposite direction while selling Harriet Miers? Why would conservatives say such things as:
"Maybe it's the judicial implications of her evangelical faith, unseen on the court in recent decades ... Friends who know Miers well testify to her internal compass that includes a needle pointing towards Christ." Marvin Olasky
"We know people who have known her for 20, 25 years, and they would vouch for her ... I konw the church that she goes to and I know the peopel who go to church with her." James Dobson, who later said "I know the individual who led her to the Lord." The article notes that Dobson also was briefed on the nomination by Karl Rove, and Dobson later stated "Some of what I know I am not at liberty to talk about," which piqued the curiosity of Senator Ken Salazar, who expressed an interest in knowing what Dobson was told that Congress wasn't.
"[The Miers nomination 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." Jay Sekulow - Counsel for the American Center for Law and Justice.
To be fair, there are a large number of conservatives who eschew these panderings, referring to them as hypocritical, and none of the offerings are provided by anyone in a position to vote on Miers' nomination. The article quotes Ed Morrisey's blog entry in "Captain's Quarters," - "Conservatives claimed that using religion as a reason for rejection violated the Constitution and any notion of religious freedom. Does that really change if we base our support on the same grounds?"
I have no gripe against the Miers nomination. If the President believes that she is a good candidate and there is no evidence showing that she isn't, then there should be no reason not to accept her. Conversely, if there turns out to be ample evidence that she doesn't intend to uphold the Constitution, or that she intends to support one side or another or if it appears in interview that she is completely incompetent to serve, then she shouldn't. I would hope that the rebuttable presumption in this country is that the President wouldn't nominate someone based simply on how close a friend she is to the family (i.e. start by believing her to be qualified, and then show through clearly convincing evidence that she isn't).
I don't like the religion argument. I believe that the church and state are two separate entities, and in keeping with the doctrine that's served us so well for over 200 years, they should be mutually exclusive.