What in God's name—you should forgive the expression—is all this about there being "no religious test" for appointments to high public office? Most particularly in the case of the U.S. Supreme Court, there is the most blatant religious test imaginable. You may not even be considered for the bench unless you have a religion of some kind. Surely no adherent of any version of "originalism" can possibly argue that the Framers of the Constitution intended a spoils system to be awarded among competing clerical sects.
A few weeks ago, I wrote about the man who is now our chief justice. I pointed to unrebutted evidence that, in answer to a direct question from a fellow Catholic (Sen. Richard J. Durbin, D-Ill.), Roberts had replied that in the case of a conflict between the law and the teaching of the Vatican, he would recuse himself. Since obviously it is impossible to nominate, let alone confirm, anyone who does not answer that the law and the Constitution should control in all cases, I proposed that Roberts ought to be asked the question again and in public. For this, I got exactly what I expected: allegations of anti-Catholic bigotry from the fideists at National Review and then (not just for my benefit) a full-page ad or two in the press, saying that anyone who dared raise such a question would be accused of applying … "a religious test." Roberts got suavely through his hearings without the inconvenience of the question, had a large Bible with illuminated crucifix in the family photo-op with the president, and now joins his three fellow Catholics on the court.
Of the nomination of Harriet Miers, by contrast, it can be said that only her religion has been considered by her conservative fans to be worth mentioning. What else is there to say, in any case, about a middling bureaucrat and yes-woman than that she attends some mediocre place of worship? One could happily make a case that more random civilians, and fewer fucking lawyers, should be on the court. But the only other thing to say about Miers is that she is a fucking lawyer. Her own opinion of herself is somewhat higher: She does not attribute her presence among us to the laws of biology but chooses to regard herself as having a personal and unmediated relationship with the alleged Jesus of Nazareth, who is further alleged to be the son of God. Such modesty! On this basis, the president and his people have felt able to issue assurances of her OK-ness. So, as far as I can determine, she was set, and has passed, a religious test: that of being an "Evangelical" Christian.
The cowardice of the Democrats in this respect is absolutely breathtaking. Having determined that they, too, must move to faith-based high ground (and having chosen a Mormon as their Senate leader), they have refused to make the smallest squeak about this overt theocratic blackmail. Having swallowed Roberts by agreeing that religion should have nothing to do with it, they will swallow Miers even though it now seems that religion has everything to do with it. The worst they will say is that she might be unsound on Roe v. Wade and that she might be insufficiently qualified. Even the incensed right wing has been more principled than that (though the line of the week award must go to Terry Eastland in the Weekly Standard, who solemnly says that "Several friends of Miers told me, on background, that she is pro-life and defines marriage in traditional terms." On background …)
In the very near future, the court is certain to hear arguments about whether the state or the states should determine who decides who carries a baby to full term and about whether the state or the states should take a position on evolution versus the argument from design. (I am sorry, but I flatly refuse to play the silly current game of prefixing the word "design" with the word "intelligent.") There is simply no point in asking an active member of the Valley View Christian Church of North Dallas what she "thinks" about abortion or creationism, because, although the Bible often recommends actual infanticide—and is thus open to "interpretation"—this congregation's view of Roe v. Wade is well-known and also because the Valley View Christian Church of North Dallas has allowed itself the discovery that the Bible is "the only infallible, inspired, authoritative Word of God." (You have to love that broad-minded "only." As if there were some rival claimant for that distinction that had been weighed in the balance in North Dallas and found wanting.)
Either Miers takes her faith seriously, in which case it must be her life's mission to redeem those who have not accepted Jesus as their savior, or she does not, in which case she is a vapid and posturing hypocrite. And either she is nominated in order to gratify a political constituency, whose leaders such as James Dobson of Focus on the Family seem to have had advance notice, or she is not, in which case the president could see no further than his own kitchen Cabinet in searching for merit. So, the whole exercise is a disgusting insult.
And here is what you could not say and hope to receive the sacrament of nomination:
Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear. You will naturally examine, first, the religion of your own country. Read the Bible, then, as you would Livy or Tacitus. … Those facts in the Bible which contradict the laws of nature, must be examined with more care, and under a variety of faces. … I forgot to observe, when speaking of the New Testament, that you should read all the histories of Christ, as well as of those whom a council of ecclesiastics have decided for us, to be Pseudo-Evangelists, as those they named Evangelists.
That was Thomas Jefferson writing to his nephew Peter Carr on Aug. 10, 1787. But what is honest skepticism—and a regard for evidence and logic—when set against the profession of a mere "faith" that neither demands nor offers any evidence of any kind? And this latter "qualification" is now urged upon us with special fervor in the selection of—a judge.
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