E.J. Dionne thinks he sees “faith-based hypocrisy” when some defenders of Harriet Miers attempt to convince conservatives that she’s one of them by pointing to her religious faith. Ed Morrisey has made the same point.
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.
Curiosity about Miers’ religious affiliation strikes me the same way. It’s not something I’m interested in, but that doesn’t make it unreasonable or improper for other conservatives to regard the information as relevant in their quest (in an information poor environment) to get a general sense of how she views the world.
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.
I do agree with Ed that, as a policy matter, it’s better that the White House not use Miers’ faith as a selling point.
UPDATE: If there’s a hypocite here, surely it’s Dionne. He advocated 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.
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