News A religious litmus test 

No atheists or agnostics need apply for the Supreme Court

Can you imagine if George W. Bush were asked about a Supreme Court justice nominee and said, “She’s a good pick for the job because she interprets the teachings of Jesus Christ to mean that abortion should be criminalized and homosexual relationships are sinful and she believes that Satan, or the influence of Satan, causes others to hold different views.” Well, that’s essentially what Bush did say the other day. During a brief encounter with reporters, Bush was asked about Harriet Miers and the White House strategy of selling her to conservatives as an evangelical Christian. Here’s the exchange:

Q: Thank you, Mr. President. Why do people in this White House feel it’s necessary to tell your supporters that Harriet Miers attends a very conservative Christian church? Is that your strategy to repair the divide that has developed among conservatives over her nominee?

PRESIDENT BUSH: People ask me why I picked Harriet Miers. They want to know Harriet Miers’ background; they want to know as much as they possibly can before they form opinions. And part of Harriet Miers’ life is her religion. Part of it has to do with the fact that she was a pioneer woman and a trailblazer in the law in Texas. I remind people that Harriet Miers is one of the has been rated consistently one of the top 50 women lawyers in the United States. She’s eminently qualified for the job. And she has got a judicial philosophy that I appreciate; otherwise I wouldn’t have named her to the bench, which is or nominated her to the bench which is that she will not legislate from the bench, but strictly interpret the Constitution.

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Part of Harriet Miers’ life is her religion. That could be said of any Supreme Court nominee. But I don’t recall any president selling a candidate by pushing the nominee’s attendance at a particular church. Bush and his bunch, though, are saying that Miers’ relationship to a conservative church (which maintains that abortion is murder and homosexuality is wrong) is somehow relevant to the question of her qualifications for the job. This is rather pernicious and, as others have noted, hypocritical. In early judicial fights, Bush-backing Republicans have accused Democrats of being mean-spirited, bigoted anti-Catholics for questioning whether the conservative religious views of judicial nominees (such as William Pryor) might influence their judicial decisions (even when such questions have been raised by Catholic Democrats). Yet Bush’s advocates for Miers point to her religious notions and claim this is a reason to support her.

In his answer to that question, Bush maintained that he picked Miers in part due to her religion, and he asked people to judge her in part on the specific theological notions she holds, which he not-too-tacitly endorsed. After all, if she were a Hindu or a Wiccan practitioner or atheist would he and his crowd be pointing that out to the religious right in an effort to swing social conservatives behind her?

The Christian soldiers do seem to be falling into line. James Dobson recently said that Karl Rove had called him before Miers’ nomination was unveiled and had assured him “that Harriet Miers is an evangelical Christian” and “that she is from a very conservative church, which is almost universally pro-life.” There is evidence, if Dobson can be believed, that the support-Miers-because-she’s-a-Christian campaign originated in the White House. Dobson was one of the first public advocates of the Miers’ nomination. And he has been joined by crazy Pat Robertson. Robertson just warned conservative critics of Miers to back off: “These so-called movement conservatives don’t have much of a following, the ones that I’m aware of. And you just marvel, these are the senators, some of them who voted to confirm the general counsel of the ACLU to the Supreme Court, and she was voted in almost unanimously. And you say, now they’re going to turn against a Christian who is a conservative picked by a conservative President and they’re going to vote against her for confirmation.’ Not on your sweet life, if they want to stay in office.” There is now literally a holy war within the right over the Miers nomination.

That Bush and Rove would stoop to such a tactic shows (I know, yet again) that they are not at all encumbered by principles and that they do not understand basic rules of (small-r) republican decency: You don’t lie to persuade the public to support a war, you don’t use a religious litmus test in selecting Supreme Court justices. Such actions threaten the civic fabric of the nation.

But Bush was already on record in favor of a religious litmus test for judicial nominees. Over three years ago, a three-judge panel of the Ninth Circuit Court of Appeals ruled that compelling students to recite the Pledge of Allegiance was unconstitutional due to the “under God” phrase. Politicians went nuts. Democratic Senators Hillary Clinton and Tom Daschle denounced the decision. House Speaker Denny Hastert and House Majority Whip Tom DeLay (who was not yet an indicted former majority leader) led 100 or so House members in a rendition of “God Bless America” on the steps of the Capitol.

Bush, who was at a G8 summit in Canada, called the decision “ridiculous,” a remark in sync with the general (and hyped-up) sense of outrage. More troubling was what Bush said the following day. Still at the summit, he began a press conference with Russian president Vladmir Putin by saying, “We need common-sense judges who understand that our rights were derived from God and those are the kind of judges I intend to put on the bench.” That was a major and stunning policy declaration. Bush was indeed announcing a litmus test for his judicial appointments. It would not be just a matter of whether a potential nominee was a conservative or constructionist. The question would also be, did a nominee believe in God and believe that secular law follows the law of God? In other words, there would be no atheists or agnostics in Bush’s chambers.

At the time, I thought this was a revealing moment, and I wrote, Did Bush realize what he was saying? Is he going to ask all potential judicial nominees to tell him their view of God and the derivation of rights? How is this fundamentalism only believers need apply different from that of America’s enemies?

Few other columnists or commentators picked up on the significance of Bush’s remarks. But now Bush is putting that fundamentalist perspective into practice. Miers is okay, he insists, because she prays in the right church. Well, Bush and she ought to hope someone up there is listening because when it comes to her confirmation hearings she’s going to need all the help she can get.

This story originally appeared on Featurewell. David Corn is the Washington editor of The Nation.


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