More on the Bush Administration Shamelessly Using Miers's Religion:

In the Comments to my last post, commentator "Steve" writes:

What bothers me is that there is not supposed to be a religious test for public office, and Republicans scream bloody murder every time a Democrat so much as mentions a nominee's religion (this came up at the Pryor hearings).

So it's strange, in this context, to hear conservatives urging each other to support the Miers nomination by citing her religion. How is it that a specific religion can be a positive, but never a negative?

It's doubly embarassing to hear this kind of talk from people who scorn the notion of the SC as a "super-legislature." Anyone who supports Miers because of her religion is acting based on results rather than on judicial philosophy, and they have no room to complain if a future President nominates judges solely to produce the outcomes he (or she) desires.


Houston Lawyer:
I believe that those who are urging support for Miers because of her religion make the regrettable assumption that everyone who belongs to a particular church actually believes the same things. Anyone who has ever participated in the governing board of a church could easily refute that notion.

I believe that some of her supporters have thrown this out as "evidence" of her conservatism. As an evangelical in Dallas stated "President Bush is asking us to have faith in things unseen. We only have that kind of faith in God."
10.5.2005 11:16am
Cold Warrior:

It's an interesting exercise to deconstruct all the seemingly throw-away phrases and visual images in these things. As we all know, they are carefully stage-managed by White House handlers.

Example 1: the reference to religion. Subtext: "She is like me, a born-again Christian. Therefore, you can assume that her faith in Christ will guide her decisionmaking on the Court."

Example 2: "Harriet's mom is very proud today." Subtext 1: "I will be criticized for choosing a 60 year-old nominee, rather than a Roberts type who might remain on the Court for 30 years. But Harriet comes from strong genes ... she may even outlive Roberts." Subtext 2: "Harriet may not have a husband or kids, but she is a committed family woman, still working hard to achieve the high goals her mother set for her."
10.5.2005 11:23am
I truly think that many religious types are looking not for a specific religious affiliation, but for an indicia of philosophy. For instance, I don't agree with the views of the Catholic Church. However, there can be little doubt that Scalia and Thomas derive a great deal of their conservative philosophies on crime and on abortion, for instance, from their faiths.

This is re-assuring to me, as someone with a conservative view of these issues. I am spiritual, but "belong" to a church with views vastly different from those of the Catholic persuasion. Nonetheless, religious affiliation--though perhaps crude and imprecise as a label--is often a quick way to tell people like me one indicia about people like Ms. Miers.
10.5.2005 11:35am
Justin (mail):
I dispute the notion that Conservatives were being remotely honest or forthcoming about the Republicans that "scream bloody murder every time a Democrat so much as mentions a nominee's religion."

For the most part (there are MINOR exceptions), it's ALWAYS REPUBLICANS that bring up the nominee's Religion. Pryor is the most useful example. Democrats opposed Pryor because he was pro-life, pro-death penalty, anti-civil-rights, anti-affirmative action, and weak on the first amendment's establishment clause. It was Republicans who made the (completely false) argument that Democrats were opposing Pryor because he was Catholic. While Republicans may or may not be correct that Pryor's Catholocism was the reason he was pro-life and anti-establishment-clause, it doesn't pass the "iff" test. Pryor could have been an athiest with those politijudicial views and would still be opposed.

So this isn't something that's somehow antithetical to Republican past behavior. It's simply the extension of believing their own lies.
10.5.2005 11:37am
Dave Hardy (mail) (www):
I think it's commonplace that (a) favorable mentions of a given religion are considered proper and polite and (b) criticism of a given religion, save perhaps detached comment on details of its dogma, are considered impolite.
10.5.2005 11:50am
If religion is supposed to be a positive, I would like to see Bush withdraw Miers and nominate a devout Muslim. See how the Republicans would react then!
10.5.2005 11:52am
Dave, it is not the religion that is at issue here, but the nominee.
10.5.2005 12:37pm
just me:
I think TL's post proves Houston Lawyer's point, and I think flaime's post proves Dave Hardy's point.

Houston Lawyer noted the "regrettable assumption that everyone who belongs to a particular church actually believes the same things." TL then said that one could link Scalia's and Thomas's Catholicism to their abortion stances. But the obvious counter-examples are Catholics Wm. Brennan and A. Kennedy on the Court, and Kerry, Kennedy, Cuomo, and the rest in politics. Also, Thomas was NOT a Catholic when he joined the Court or when he dissented in Casey; he joined the Catholic Church later.

Now, one could argue that the Brennans et al. are not really all that Catholic if they reject such an important teaching, but that would only mean that one can also argue that some evangelical is not "really all that evangelical" if she also rejects associated beliefs. Either way, mere Sunday attendance doesn't tell you much.

On another note, Dave Hardy says, rightly, that it's commonplace to allow favorable mention of religion, but not unfavorable mentions. Flaime then mentions the possibility of a Muslim nominee. There, I think Hardy's point would be proven, as I think some people would comment favorably on the "diversity" point, but those who pointed to it negatively would face criticism for the negative comments.

Indeed, I think Hardy's point can be extended to gender and race/ethnicity along with religion. It's OK to praise the "plus factor," praise the "trailblazer" who has broken barriers, etc. But the reverse comments . . .?
10.5.2005 12:41pm
You suggest there is an asymmetry when there's not. Conservatives say "confirm her, she'll probably vote the right way because of her religion." Liberals say "don't confirm her, she'll probably vote the wrong way because of her religion." Either both of these statements should be acceptable or neither should.
10.5.2005 12:52pm
Just me:

The indicia is still a fair one because more Catholics and more Protestants are opposed to abortion, for instance, than atheists/agnostics/other new age religions (which don't even purport to have a constant "code of ethics," if you will).

Statistics bear this out.

I refuse to make "the regrettable assumption that everyone who belongs to a particular church actually believes the same things." The analysis that I articulate is instead a statistical one. It is comparable to making a statement that "men over 40 who are 100 lbs overweight and have high cholesterol are likely to die of a heart-attack." Based upon the law of numbers, this statement is true.
10.5.2005 1:47pm
I don't follow that, TL. Whence this notion that atheists don't have a consistent code of ethics? I've always been puzzled why there are not more atheist conservatives. If you know that right is right and wrong is wrong, and you are consistent in your stance, why do you need the backing of "God" to affirm that? Asserting that ethics can be deduced philosophically rather than ecclesiastically is in no wise relativistic.

As an atheist who believes in limited government, I find nothing "conservative" about demanding a more visible role for religion in the public sector. That's as much big government as a welfare state is.
10.5.2005 2:55pm
Just me:

I don't believe that the religious conservative base of the Republican party would react at all favorably to a Muslim candidate. Nor do I believe that they would withhold their criticism of the candidate because "criticism of a given religion, save perhaps detached comment on details of its dogma, are considered impolite." Not when prominent religious conservatives, including some in Congress, can be found, at any given moment, expounding on how Islam and Muslims are out to destroy the United States and it's underlying foundations.
10.5.2005 3:17pm
Our beliefs inform our policy initiatives. Your last paragraph is silly; nobody argued for a church state. The discussion, at least on my end, is religious viewpoints > predicter of philosophy (one of many) > views on specific issues > abortion (one of many examples).

My "Code of ethics" observation is appropriately a parenthetical, b/c it is one possible reason supporting the conclusion, and it is largely an opinion. It is not central to the present discussion.

The argument about abortion viewpoints is still perfectly valid and statistically grounded, regardless of arguing about reasons in support of the conclusion. Protestants/Catholics opposed abortion > other non-monotheistic contingencies opposed to abortion.

(Since you asked, one more parenthetical: Any religion not grounded in a belief in absolute truth, doesn't have a constant code. That code would change whereby one's own human experience changes. It is different for each person. This is not to say that an individual living under such code won't make ethical, or moral decisions, devoid of church. It just means it's not written or binding on anybody.)
10.5.2005 3:31pm
PS-to M.G. in the last cmt.
10.5.2005 3:33pm
Last, and I'll rest.

From NYTimes today:
Religion appears to have influenced her views on certain subjects. In a discussion with her campaign manager in 1989, Ms. Miers said she had been in favor in her younger years of a woman's right to have an abortion, but her views evolved against abortion, influenced largely by her born-again religious beliefs, said Lorlee Bartos, a Democratic campaign consultant in Dallas who managed Ms. Miers's City Council campaign.

"She was someone whose view had shifted, and she explained that to me," Ms. Bartos said.
10.5.2005 3:41pm
Dilan Esper (mail) (www):
David Bernstein and Steve are right about the inconsistency of conservatives screaming about religious tests with respect to Roberts and Pryor and then touting Miers' religion to evangelical supporters.

But I would suggest this problem is deeper-- I think the "religious test" language in the Constitution has lost its actual meaning in political discourse.

What the clause actually means is that the government cannot require that nominees to a post belong to a particular religion, or any religion at all, or no religion. It is sort of subsumed within the Free Exercise clause in the First Amendment (enacted a few years later as part of the Bill of Rights), but that's what it means.

What it does NOT mean is that someone's views on issues relevant to the post cannot be considered if they are motivated by religious belief rather than some other motivation. To use an obvious example, the Senate is perfectly permitted to refuse to confirm a judicial candidate who is opposed to capital punishment, and the body is equally entitled to deny confirmation to the nominee whether the opposition is based on religious or secular grounds. To do so is not to impose a religious test, so long as religious opponents of capital punishment are not treated differently than non-religious opponents of capital punishment.

Stated that way, there was nothing wrong with discussing whether Chief Justice Roberts' religious beliefs would interfere with his judicial independence, and nothing wrong with discussing whether Ms. Miers' religious beliefs will affect how she decides cases. So long as religious belief or nonbelief is not singled out and treated differently than other beliefs held by the nominee, there is no religious test.

This whole issue is reminiscent of the misuse of the term "giving aid and comfort to the enemy", which Professor Volokh has on occasion discussed on this blog. Essentially, just because someone's political activities may incidentally assist the enemy's cause, but were not intended to do so and were not done pursuant to any adherence to the enemy, does not mean it gives "aid and comfort" to the enemy. And yet, over and over again, politicians and pundits implicitly accuse their opponents of treason by using the "aid and comfort" language rather than simply saying that they may be unwittingly helping the enemy with their activities.
10.5.2005 4:02pm
Houston Lawyer:
I believe it is perfectly acceptable for the general public to make judgements regarding someone's fitness for office based upon that person's professed religion. However, I find the thought of senators questioning nominees regarding their religious beliefs to be patently offensive. At various points in time, in order to hold office in England, a man was required to renounce transubstantition, a central tenet of Catholic faith.

I believe that several senators have implied, if not actually stated, that Catholics that actually believe in church doctrine are unfit for service on the supreme court since presumably they wouldn't support an unfettered right to abortion. This notwithstanding the fact that I am unaware of any public official who has ever stated that he would not apply the law as written in spite of the fact that the law in question was contrary to his religious beliefs.
10.5.2005 4:57pm
Dilan Esper (mail) (www):
Houston, I hate to sound like Bill Clinton, but whether Senators can or should vote against nominees who "actually believe in church doctrine" depends on what the meaning of "church doctrine" is.

If you believe that "church doctrine" requires a Justice to rule in particular cases in particular ways, or requires a Justice to use an incorrect interpretive philosophy, then a nominee who "actually believes in church doctrine" can properly NOT be confirmed.

On the other hand, if you believe that "church doctrine" governs personal conduct, and may even govern political conduct, but doesn't require a judge to interpret the law in a particular manner or favor particular results in particular cases, then "actual belief in church doctrine" is out of bounds.

I think that a lot of conservative Catholics get tripped up on this one because they strongly desire to prevent politicians from calling themselves Catholics while opposing, on political grounds, positions asserted by the Church, and are willing to use Church disciplinary mechanisms to accomplish this. And specifically, they would like to do this on abortion.

Well, if you think that church law also requires JUDGES to decide abortion cases (or other cases) in a certain way, and that judges who do not do so should be disciplined by the Church, then it seems to me that this is a live issue in confirmation hearings and you can't hide behind "religious test" language.
10.5.2005 6:07pm