The Religious Test

Paul Mirengoff from Powerline argues that its not 'hypocrisy' for conservatives to use Harriet Miers faith to convince other conservatives of her 'conservative' ideals. He insists that in an information-poor environment, people will use whatever information they can to try and divine what the nominees stance on certain issues would be. He says its analagous to the intense interest in John Roberts membership in the Federalist Society.

Dionne and Captain Ed raise a serious point, but in the end I don't see the hypocrisy. When a president nominates a Supreme Court with a scant record of publicly stated beliefs, it's natural to try to read the tea leaves. Thus, with Chief Justice Roberts, we all (on both sides) were curious as to whether he was a member of the Federalist Society. To the extent that he was (or had been), some conservatives would have been more comfortable with him and many liberals less so.

To make a long story short, Paul is wrong.

First, while information on Roberts' legal or judicial philosophy might have been lacking, we had plenty of legal briefings to peruse and uparallelled information on his background. In Miers case, we have none of this. His membership in the Federalist Society was more of a 'intriguiging tidbit' if you will...a 'was he or wasn't he' moment whereupon ideologues on both sides could use to either bolster support for the nomination or rejection.

The difference with Miers is that there is virtually no information at all. No legal briefings, no articles written (save one I belive), no 'on the job' experience...well, that we are privy to anyway. So instead, some conservatives and the Bush Administration are touting her religion as a way to appease other social conservatives into believing that she will be 'conservative'. If this works for you as a conservative, thats fine. However, you should be asking yourself this: Is that enough to convince me and quite frankly, is that the way I want to be convinced?

The second point Paul makes is also wrong.

But what about the Article VI, Clause of the Constitution which states in part that "no religious test shall ever be required as a qualification to any office or public trust under the United States"? As I understand this provision, it protects Miers and other nominees from having to disclose their beliefs about religion. It also prohibits Senators from basing their votes on a nominee's beliefs. It would offend the Constitution if, for example, Senator Schumer voted against William Pryor out of fear that his deeply held Catholic views would cause him to violate his oath to uphold the Constitution. The same would be true if a Senator voted against a nominee because she is an atheist. But I'm hard-pressed to see a problem with private citizens using such bits of information to try to form a sense of a nominee.

If there's a hypocite here, surely it's Dionne. He advocated (ed. link removed) that the Senate interrogate Roberts regarding the implications of his Catholicism on his judging. Now he thnks it's "good news" that some conservatives think the White House shouldn't even mention Miers' religion.

The difference that Dionne seems to be pointing out is this. While acceptable to question and clarify how a nominee feels their personal religion would influence their judicial decisions is certainly not out of bounds and, in this day and age, almost a necessity; it is NOT acceptable to tout their religion as a 'qualification' (be it conservative or not) for a judicial appointment and NOT acceptable to vote one way or the other based on no other information than their religion.

It is exactly the latter that the Bush Administration is doing.