Bush’s decision to name Harriet Miers, his White House counsel and longtime Texas pal, to the Supreme Court seat now held by retiring Justice Sandra Day O’Connor should raise Constitutional concerns.
Miers, who nobody really knows her stance on certain issues, has left very few clues in her previous public posts, which include service on the Dallas city council and as Bush’s lottery commissioner when he was governor of Texas.
But her nomination to the Supreme Court comes as no surprised to many of us Texans who are Bush watchers since Bush had already established this type of precedents when – as governor in 1998 – he appointed Alberto Gonzales to the Texas Supreme Court.
However, two weeks ago, GW Bush did open Pandora’s Box when he told reporters his reasoning for nominating Harriet Miers to the Supreme Court. Which, now, the White House is actively playing down.
On October 12, Bush told reporters that it was Miers’ evangelical Christian beliefs that are his reasons for nominating her to the Supreme Court.
“People are interested to know why I picked Harriet Miers,” Bush told reporters at the White House. “Part of Harriet Miers’ life is her religion.”
Then, after Bush concluded a meeting with visiting Polish President Aleksander Kwasniewski in the Oval Office, Bush told reporters:
…that his advisers were reaching out to conservatives who oppose her nomination “just to explain the facts.” He spoke on a day in which conservative James Dobson, founder of Focus on Family, said he had discussed the nominee’s religious views with presidential aide Karl Rove.
And therein lies the slippery slope, on which Bush just ventured, which leads toward an unconstitutional – and un-American – religious test for the high judicial office.
James “The Family Man Fundi” Dobson was very eagar to tell his listeners on his radio program that Karl Rove made a call to him to discuss Miers’ religious beliefs before Bush announced her nomination October 3.
Dobson also told his listeners Rove assured him Mier’s is “an evangelical Christian…[and] that she is from a very conservative church, which is almost universally pro-life; that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion.”
The problem with Bush’s nomination is not that she lacks merit. The issue at hand is that Bush is constitutionally obliged not to apply a religious litmus test. Article VI clause 3 of the U.S. Constitution clearly prohibits the use of any religious test for any public office:
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.
Therefore, it is illegitimate for Bush to make a Supreme Court appointment based on a single issue – her religious faith, which clearly is unConstitutional. And if, the Senate Judiciary Committee were to approve Bush’s nominee solely based on her religion, as the President seems to be suggesting, they too would be in violation of the Constitution.
As of now, Bush currently has the support of conservative Christians in the private sector, such as James Dobson, because Bush has assured the religious right that she will vote to overturn Roe v. Wade because of her evangelical faith. (Another embarrassing wink-nudge from the President.)
By trodding down this dangerous path, both Bush and Rove have just created a political quagmire – they are forcing the Judiciary Committee to refrain from any line of questioning that suggests a religious litmus-test for the Supreme Court.
This is the very reason Clause 3 of Article VI was written into the Constitution by the Founding Fathers. The purpose for Article VI was not only to remove the basis for any preferential treatment of one religion over another for holding public office, but it also denied the right of any preferential status of religion over nonreligion in appointment matters. The prohibiting of applying any type of religious litmus test was created not only because of the religious pluralism that was rampant at the time of the nation’s founding, but also of the concept of the new Republic as a secular state. The very exclusion of any religious test for office was itself a profound acknowledgment of the secular character of the new Republic.
Former Presidential Speech Writer William Lee Miller noted in his historical review of religion and the Constitution, The First Liberty: Religion and the American Republic, that “in the framing of Article VI …the new nation was electing to be nonreligious in its civil life.” Regarding the issue of religion, Miller found that “more striking than what the Federal Constitution did include is what it did not.”
Currently there are those in Congress and in the White House who succumb to the belief that the only law to be in existance is the the Law of God, and therefore there can be no distinction between a judicial decision based on American law and one based on God’s law. These are the folks vigorously pushing for the power of government to post the Ten Commandments in schools and courthouses.
But there is a radical difference between the law on the books and in past opinions, and Biblical Law. This principle is a basic and fundamental feature of the Constitution – the very Constitution Congress, the President, and the Supreme Court Justices took an oath to uphold. The same Constitution that Bush, took an oath to uphold in January of this 2004.
America is a nation in which neither religious faith enjoys any official status and where no church or religion is to enjoy any advantages or to suffer any disadvantages because of an establishment of religion. Religious identity is made irrelevant to one’s rights of citizenship, e.g., the right to vote and to hold public office. One’s religion or non-religion may not be made the basis of political privilege or discrimination. At a time when there is a resurgence of the notion of a “Christian America”, the nomination of Miers is an especially appropriate time to reflect on the meaning and significance of the seperation of church and state in American public life. In the past few years, there is a growing tendency for candidates to stress their religious credentials, to use religion to serve their own political purposes, and to use political means for the advancement of religious fundamentalists. We need to remind our Senators the importance of Article VI before Mier’s confirmation hearing. If this is allowed to continue, Bush has once again set precedent – appointments can be based on a person’s religious beliefs and the Constitution is worthless in the eyes of BushCo political machine.