Thursday, October 13, 2005

Is this Unconstitutional?

Article VI, Clause 3 of the Constitution says "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Recently, President Bush explained some of the reasons as to why he selected Harriet Miers for the Supreme Court. "People are interested to know why I picked Harriet Miers, ... part of Harriet Miers' life is her religion."

There were other reasons that he listed, including the quote "She will not legislate from the bench, but strictly interpret the Constitution."

One might argue that when he says "strictly interpret the Constitution," he means "rule the way I want her to rule," given that the letter of the Constitution says no religious test shall be required, yet he listed her religion as the foremost reason he selected her.

Then again, one might argue that he didn't use religion as a test, but rather commented on her whole person, which happens to include religion, and that while he admired her commitment to religion, he did not use it as a balancing factor in determining whether to nominate her or not.

I don't know, I think a strict constructionist view has her nomination going out the window, which would be a shame, because I think the Court could benefit from someone who doesn't have Ivy League credentials and actually knows how to work as a lawyer and a judge.


Bookworm said...

As you know, I'm in favor of Miers precisely because she's not Ivy League and she hasn't been a judge before. As for the President's comment about her religious commitment, I don't think it's a religious test. I think he's simply commenting on the belief system that informs her world view. I'm reminded of Kennedy promising that, when he was in the White House, he wouldn't take orders from the Pope. We don't want to erase people's religious beliefs in order for them to serve in public office, since these beliefs are an important part of their value systems. We do want to be sure, though, that Miers won't be taking direct orders from the Conference of South Baptists, or whatever organization one can think of.

Steve said...

Doesn't his answer beg the question though, Bookworm? Wouldn't one necessarily ask "Well, if one of the reasons he chose her was her religion, would she be less qualified by his standards if she were Buddhist, Muslim, or Wiccan?" And if that's the case, then one would have to concede that he used religion at a minimum as a litmus test in determining what he considered "qualified" to sit the bench.

You and I agree that Ms. Miers' presence on the court could be a strong positive. I don't debate her qualifications one way or the other. Instead, I question the method the President went about selecting a candidate.

Of course, he could have avoided the entire ordeal had he not made the statements.