The Volokh Conspiracy - The Constitutional Etiquette of Religion in Judicial Nominations:

I've been very grateful for the comments so far on my posts on my paper discussing the Religious Test Clause and judicial nominations. They've been very thoughtful and useful. (I'd like to hear from more of you. Perhaps I should write about the Test Clause and the Second Amendment!) I'll have much more to say about them tomorrow.

So far I've offered a "narrow but deep" interpretation of the Religious Test Clause, on both descriptive and normative grounds. My conclusion has been that, "[h]owever treacherous the waters we must navigate when we invoke religion in the course of judicial nominations, the Religious Test Clause offers us no beacon." With the Constitution put to one side, so to speak, today I want to turn to the task of "crafting non-constitutional rules -- albeit rules that are crafted in the shadow of the Constitution -- that might guide and constrain the conduct of public dialogue on religion in the context of nominations." Borrowing a term from Alan Brownstein, I call this "constitutional etiquette."

Such a project has at least two related problems. First, such suggestions tend to be a little loosey-goosey: we can come up with reasonable standards, but they are likely to be vague and there will naturally be disagreement both on the standards and on their application. Second, they may be a little idealistic. Of course I don't believe everyone will follow these standards in every case, and I'm not sure they always should. Sometimes debate should be uninhibited, robust, and wide-open, and we shouldn't expect every public dialogue to be as well-reasoned and careful as, say, a university faculty meeting. (For those not currently in the academy or who are not Canadian, that would be an example of wry humor.) But this part of the project is important to me. Many public debates at the intersection between law and politics seem to me to start in medias res. Before we can usefully hold such discussions, we ought first to think about the standards guiding that debate, so that we can thoughtfully evaluate not only the merits of the arguments made by public actors, but the consistency and integrity of those arguments. If, as I believe, the Constitution resolves relatively few issues and leaves primary responsibility for many questions in the hands of We the People, then all conscientious citizens -- voters and lawmakers alike -- can fulfill that role best if we have benchmarks against which to evaluate our own conduct and that of other citizens, including public officials. So here's one stab at some standards.

In my paper, I offer five standards that might guide public debate in this area. Not surprisingly, they are potentially of wider application than the judicial nomination dialogue alone, and may well be broader than the question of religion in politics itself. First, we may ask, does the dialogue meet standards of transparency. If religion is to factor into public officials' deliberations on nominations, they ought to be willing to say so publicly, offering the public a chance to mete out whatever political rewards or punishments they think appropriate in the circumstances. So, for instance, if the Bush administration wished to use Harriet Miers' religion in selling her to particular influential religious supporters such as James Dobson, it ought to have been willing to say much the same thing publicly. It's not clear that it was: it appears to have offered one set of justifications for the nominee privately and another set publicly. This is not a partisan accusation: a Democratic senator who voted against a religious candidate on that basis but dressed up the vote in other public justifications would fail the same test. One thing we might observe about the first example, though, is that it should be taken as odd and unfortunate if a public official who believes and argues that religion should be welcome in the arena of public debate, as I think is true of the President, then conceals religious reasons for particular decisions. (Let me say this point raises controverted factual questions. You're welcome to argue with them. My paper assumes the truth of certain public reports about the Miers case, but doesn't assert them as an absolute certainty.)

A related principle is that of consistency. An argument for or against the use of religion in the context of a particular judicial nomination ought to apply consisently in the case of later nominations. This principle is hardly unique to nominations, or even to the issue of religion in politics: it is nothing more than a suggestion that integrity and consistency in argument are important benchmarks for judging political decision-makers. In my view, many of the voices in the recent judicial nomination passed this test: they argued that the Test Clause barred certain questions about "deeply held beliefs" raised against nominee Roberts, and also argued that it barred President Bush from raising religion in support of nominee Miers. I happen to think they were consistently wrong: the Clause bars neither of these things. But they were consistent. A few groups loudly protested the use of religion in the Roberts case, but were conspicuously silent in the case of Miers.

A third principle we should keep in mind is an appreciation for nuance. Although religious faith plays a profoundly important role in people's lives, that role cashes out in complicated ways. It is difficult enough to figure out what a religion requires for its adherents: for instance, whether the obligations of decision-makers who are Catholic differ depending on whether they are making the law, interpreting and enforcing the law, and so on. It is still more difficult because various individuals take different views of what those obligations mean to them, personally or in an official capacity. So one may hope that we will approach these issues with a sense of caution and nuance. I'm not sure public officials often pass this test. Doubting questions aimed at Catholic nominees often seem to miss these complexities; conversely, the extent to which supporters of a nominee like Miers assume that nominee will judge a particular way because of her religious views can be similarly shallow. I might add that one commenter yesterday wrote that we are entitled to view Muslim candidates or nominees as "inherently trustworthy" on a blanket basis. I strongly disagree with this view as a general matter. But I would also point out that the variation in views held by various Muslim individuals, and the still greater variation in individual views about the relationship between one's faith (Muslim or otherwise) and one's conduct in office, raise serious questions about whether such a view is simply blind to the nuanced role of religion -- any religion -- in the real world, in the lives of actual people of any and every faith.

The fourth principle I call one of genuine respect. That is, we ought to be genuinely respectful of the vital role of religion in many people's lives, and of their entitlement to engage in public dialogue, often in explicitly religious terms. But genuine respect means taking religion seriously, not just as something anodyne or trivial. It means that just as we are entitled to make religious arguments or praise religious views, or commend someone religious as a fine and moral nominee, we are entitled to criticize those views in equally clear terms where we disagree with them. During the Roberts nomination, one group wrote an open letter saying that "[r]eligion, like ethnicity or race, is a natural part of one's background and may be referred to as naturally -- and as respectfully -- as those other things are." I may be overreading this sentence, but it seems to me to suggest that it's OK to discuss religion in politics only in positive and anodyne terms. But religion is not only like race or ethnicity: it can also involve a set of deeply held and controversial views. As with such views, religious views should be entitled to figure in political debate, but they are as subject to praise and criticism as any other views. Of course, some of this debate may be divisive or intemperate. But at least it will involve real dialogue, and I think that is far preferable to a more neutered form of public debate.

Finally, a dash of humility is called for. We all "see through a glass, darkly," as Corinthians puts it, and we ought to be suitably humble both about our own views as we discuss such contentious issues, and about those of others. While I think this is especially important in an area as contentious and potentially divisive as the intersection of religion and politics, it is, of course, a general virtue, of which we could all use more in our private and public lives.

Again, there's an idealized quality to these principles of constitutional etiquette, and I don't expect them to be followed or applied in any rigid fashion. But again, for those of us who want to live appropriately as citizens under the Constitution, but who believe that the Constitution does not settle every issue and leaves us to make our own way as best we can, it's important for us to think about how to exercise the discretion we are given within the public and political realm, and about how to evaluate the public officials who serve us, in ways that partake of an integrity that is larger than any single controversy. I don't think the Religious Test Clause ultimately tells us much about whether various Senators, the President, and other public and political actors behaved appropriately in the case of Roberts and Miers. But given that those cases are unlikely to be the last time that religion figures in a judicial or other nomination, it is never too early for us to think about how we ought to govern ourselves in such circumstances, in light of whatever constitutional "values" and rules for public dialogue we think best reflect a properly functioning society. These standards are a start. Of course, I welcome your views, and perhaps other candidates for a rule of "constitutional etiquette."

	[Paul Horwitz (guest-blogging), March 28, 2007 at 10:23am] Trackbacks The Constitutional Etiquette of Religion in Judicial Nominations: I've been very grateful for the comments so far on my posts on my paper discussing the Religious Test Clause and judicial nominations. They've been very thoughtful and useful. (I'd like to hear from more of you. Perhaps I should write about the Test Clause and the Second Amendment!) I'll have much more to say about them tomorrow. So far I've offered a "narrow but deep" interpretation of the Religious Test Clause, on both descriptive and normative grounds. My conclusion has been that, "[h]owever treacherous the waters we must navigate when we invoke religion in the course of judicial nominations, the Religious Test Clause offers us no beacon." With the Constitution put to one side, so to speak, today I want to turn to the task of "crafting non-constitutional rules -- albeit rules that are crafted in the shadow of the Constitution -- that might guide and constrain the conduct of public dialogue on religion in the context of nominations." Borrowing a term from Alan Brownstein, I call this "constitutional etiquette." Such a project has at least two related problems. First, such suggestions tend to be a little loosey-goosey: we can come up with reasonable standards, but they are likely to be vague and there will naturally be disagreement both on the standards and on their application. Second, they may be a little idealistic. Of course I don't believe everyone will follow these standards in every case, and I'm not sure they always should. Sometimes debate should be uninhibited, robust, and wide-open, and we shouldn't expect every public dialogue to be as well-reasoned and careful as, say, a university faculty meeting. (For those not currently in the academy or who are not Canadian, that would be an example of wry humor.) But this part of the project is important to me. Many public debates at the intersection between law and politics seem to me to start in medias res. Before we can usefully hold such discussions, we ought first to think about the standards guiding that debate, so that we can thoughtfully evaluate not only the merits of the arguments made by public actors, but the consistency and integrity of those arguments. If, as I believe, the Constitution resolves relatively few issues and leaves primary responsibility for many questions in the hands of We the People, then all conscientious citizens -- voters and lawmakers alike -- can fulfill that role best if we have benchmarks against which to evaluate our own conduct and that of other citizens, including public officials. So here's one stab at some standards. In my paper, I offer five standards that might guide public debate in this area. Not surprisingly, they are potentially of wider application than the judicial nomination dialogue alone, and may well be broader than the question of religion in politics itself. First, we may ask, does the dialogue meet standards of transparency. If religion is to factor into public officials' deliberations on nominations, they ought to be willing to say so publicly, offering the public a chance to mete out whatever political rewards or punishments they think appropriate in the circumstances. So, for instance, if the Bush administration wished to use Harriet Miers' religion in selling her to particular influential religious supporters such as James Dobson, it ought to have been willing to say much the same thing publicly. It's not clear that it was: it appears to have offered one set of justifications for the nominee privately and another set publicly. This is not a partisan accusation: a Democratic senator who voted against a religious candidate on that basis but dressed up the vote in other public justifications would fail the same test. One thing we might observe about the first example, though, is that it should be taken as odd and unfortunate if a public official who believes and argues that religion should be welcome in the arena of public debate, as I think is true of the President, then conceals religious reasons for particular decisions. (Let me say this point raises controverted factual questions. You're welcome to argue with them. My paper assumes the truth of certain public reports about the Miers case, but doesn't assert them as an absolute certainty.) A related principle is that of consistency. An argument for or against the use of religion in the context of a particular judicial nomination ought to apply consisently in the case of later nominations. This principle is hardly unique to nominations, or even to the issue of religion in politics: it is nothing more than a suggestion that integrity and consistency in argument are important benchmarks for judging political decision-makers. In my view, many of the voices in the recent judicial nomination passed this test: they argued that the Test Clause barred certain questions about "deeply held beliefs" raised against nominee Roberts, and also argued that it barred President Bush from raising religion in support of nominee Miers. I happen to think they were consistently wrong: the Clause bars neither of these things. But they were consistent. A few groups loudly protested the use of religion in the Roberts case, but were conspicuously silent in the case of Miers. A third principle we should keep in mind is an appreciation for nuance. Although religious faith plays a profoundly important role in people's lives, that role cashes out in complicated ways. It is difficult enough to figure out what a religion requires for its adherents: for instance, whether the obligations of decision-makers who are Catholic differ depending on whether they are making the law, interpreting and enforcing the law, and so on. It is still more difficult because various individuals take different views of what those obligations mean to them, personally or in an official capacity. So one may hope that we will approach these issues with a sense of caution and nuance. I'm not sure public officials often pass this test. Doubting questions aimed at Catholic nominees often seem to miss these complexities; conversely, the extent to which supporters of a nominee like Miers assume that nominee will judge a particular way because of her religious views can be similarly shallow. I might add that one commenter yesterday wrote that we are entitled to view Muslim candidates or nominees as "inherently trustworthy" on a blanket basis. I strongly disagree with this view as a general matter. But I would also point out that the variation in views held by various Muslim individuals, and the still greater variation in individual views about the relationship between one's faith (Muslim or otherwise) and one's conduct in office, raise serious questions about whether such a view is simply blind to the nuanced role of religion -- any religion -- in the real world, in the lives of actual people of any and every faith. The fourth principle I call one of genuine respect. That is, we ought to be genuinely respectful of the vital role of religion in many people's lives, and of their entitlement to engage in public dialogue, often in explicitly religious terms. But genuine respect means taking religion seriously, not just as something anodyne or trivial. It means that just as we are entitled to make religious arguments or praise religious views, or commend someone religious as a fine and moral nominee, we are entitled to criticize those views in equally clear terms where we disagree with them. During the Roberts nomination, one group wrote an open letter saying that "[r]eligion, like ethnicity or race, is a natural part of one's background and may be referred to as naturally -- and as respectfully -- as those other things are." I may be overreading this sentence, but it seems to me to suggest that it's OK to discuss religion in politics only in positive and anodyne terms. But religion is not only like race or ethnicity: it can also involve a set of deeply held and controversial views. As with such views, religious views should be entitled to figure in political debate, but they are as subject to praise and criticism as any other views. Of course, some of this debate may be divisive or intemperate. But at least it will involve real dialogue, and I think that is far preferable to a more neutered form of public debate. Finally, a dash of humility is called for. We all "see through a glass, darkly," as Corinthians puts it, and we ought to be suitably humble both about our own views as we discuss such contentious issues, and about those of others. While I think this is especially important in an area as contentious and potentially divisive as the intersection of religion and politics, it is, of course, a general virtue, of which we could all use more in our private and public lives. Again, there's an idealized quality to these principles of constitutional etiquette, and I don't expect them to be followed or applied in any rigid fashion. But again, for those of us who want to live appropriately as citizens under the Constitution, but who believe that the Constitution does not settle every issue and leaves us to make our own way as best we can, it's important for us to think about how to exercise the discretion we are given within the public and political realm, and about how to evaluate the public officials who serve us, in ways that partake of an integrity that is larger than any single controversy. I don't think the Religious Test Clause ultimately tells us much about whether various Senators, the President, and other public and political actors behaved appropriately in the case of Roberts and Miers. But given that those cases are unlikely to be the last time that religion figures in a judicial or other nomination, it is never too early for us to think about how we ought to govern ourselves in such circumstances, in light of whatever constitutional "values" and rules for public dialogue we think best reflect a properly functioning society. These standards are a start. Of course, I welcome your views, and perhaps other candidates for a rule of "constitutional etiquette."