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The Harriet Miers Nomination: What Does Religion Have to Do With It?

Tuesday, Oct. 18, 2005

No one likes an underdog more than I do, and as my last column indicated, there is nothing in Harriet Miers's record to argue against her ability to serve as a Supreme Court Justice. Indeed, more than this, Miers actually has had some career experiences (in a large business practice, a city government, and a state executive branch position) that would make her a valuable addition to the Court.

But it cannot be denied: Miers is an underdog. I strongly suggest that the President host a screening for the Senate Judiciary Committee of the recently released movie, The Greatest Game Ever Played, right before her confirmation hearings. It is the best movie in recent years about the American Dream and the little guy who gets a break, only to go on to become one of the best.

In this column, I'll discuss Miers's supporters and detractors, and their views of her - which may not, in the end, be as accurate as they think. I'll also explain why Miers's devotion to her religion provides neither a guarantee that she'll overrule Roe (even if she opposes it, as many have said), nor a valid basis to confirm her.

Dividing Conservatives: Supporters Focus on Roe; Detractors Claim Lack of Merit

It is very interesting to chart how the Miers nomination has cleaved conservative Republicans. President Bush has been able to muster support for her among some conservative Christians in the private sector, like Jay Sekulow, Leonard Leo, and James Dobson, apparently because they are deducing from her evangelical faith that she is likely to vote to overturn Roe v. Wade. (We've all seen the fumbling nudge-nudge from the President on this one. Oh, for the days when Ronald Reagan could have carried off such a performance. Frankly, it's been embarrassing.)

For those who've opted to take Roe's overruling as their number one issue, Miers seems to fit the bill. And, as private actors, they have every right to support a candidate on one or a number of issues - including religious and moral ones. They are not elected representatives who have an obligation to the larger good under the Constitution, so they can make their moral issue a litmus test if they so choose.

But other political conservatives - whether in the Senate, or in the private sector--are balking at the Miers nomination, because they are not satisfied that her religious bona fides make her the type of Justice they sought. There have been charges of elitism and snobbery, but that does a disservice to the old-fashioned Republican value of meritocracy. George Will's objection to Miers is based on a claim that she lacks merit, not merely on the blinders of elitism, and an objection on merit is perfectly legitimate.

Here is a question not yet featured in the newspapers, to my knowledge - what was Miers's class rank at Southern Methodist University? Since we do not know, I suppose it is safe to assume she did not graduate at the top of her class.

Senators Are Constitutionally Obliged Not To Apply a Religious Litmus Test

In the end, the key question is this one: Will conservative Senators create the sort of roadblock that will scuttle Miers's confirmation?

The conservative Senators - Brownback, most notably, and Santorum -- must play a different role. It is illegitimate for them (as it is for the President) to make a Supreme Court appointment based on a single-issue litmus test like Roe. And they certainly should not approve a presidential nominee solely based on her religion, as the President seemed to suggest last week.

The Judiciary Committee hearings cannot begin and end with a description of Miers's faith. That is because a Justice is charged with the very secular responsibility of upholding the Constitution and the government it creates. A good and legitimate Justice must embrace the rule of law, not the rule of men (or God), if her decisions are going to be legitimate. That is why Chief Justice Roberts had to make it very clear that if there was a conflict between his faith and the law, he would follow the law.

There are those who are currently wedded to the solipsism that the law simply is God's law, 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 the law that might be dictated by God (which depends, of course, on how the individual reads the Bible, the Koran, or other religious document). This principle is a basic and fundamental feature of our Constitution - the very Constitution that the Senators took an oath to uphold, and that Miers, if she becomes a Justice, will take an oath to uphold, as well.

The Real Question Is Not What Miers Thinks of Roe, But What She Thinks of Casey

Thus, the question is not at all whether a Justice Miers would be opposed to Roe, but rather whether she is inclined to agree with the plurality in Planned Parenthood v. Casey that long-settled precedents like Roe should be overturned only in extraordinary circumstances.

If one were only asking the question: what does God command regarding abortion, Miers would provide one answer. But the question here is, instead, When should settled precedents fall? To that second question, Miers may well provide an answer that does not lead directly to the demise of Roe.

Stare decisis - the rule that precedent commands respect -- is thus the key arena the Senators need to explore, and her religious faith has nothing to do with that rule.

Thus, the public support for Miers from the conservative Christians seems a bit foolhardy. They have received assurances, apparently, that she is with them on abortion, but how in the world can they make a judgment about her view on precedent? By comparison, Justice O'Connor wrote opinions that reflected her discomfort with Roe, but nevertheless, in Casey, voted to uphold Roe's result based upon stare decisis concerns.

Since Miers has no paper trail and has never been a judge, Senators cannot be sure of her view on overruling well-settled precedent unless they ask her about it. And even if they ask, she may not yet have a clear answer: It is legitimate to question whether she has even formed a view on precedent yet, because it is one of the more sophisticated theories a Justice must develop and apply in case after case. One should expect her view on this issue to evolve over time while she is on the bench.

And it's a theory with very broad significance. At the Court, there are 8,000 petitions for review each year, and the Court decides roughly eighty cases, covering an amazingly large field of legal issues. The overwhelming majority have absolutely nothing to do with the issue of abortion. But in all of them, past Court precedents are inevitably implicated.

Thus, if Miers is confirmed, her view on precedent will impact cases on issues ranging from the death penalty to ERISA.

The President's Assurance that Miers Will Not "Make Law," Too, Means Little

The President's implicit assurances that Miers's religious belief will lead her to vote to overrule Roe are thus less convincing than they may seem. So are his assurances that she will not "make law" or "legislate from the bench." After all, these are not self-defining phrases.

Do these assurances mean that Miers will take the view that all constitutional issues should be left to legislative control? Surely, that is not the case.

For example, should a state's determination that lethal injection is consistent with the Eighth Amendment's cruel and unusual punishment clause be the end of the Court's inquiry? Or what about a city council's decision to give city contracts solely to minorities for the next ten years -- is that a decision that should be left to elected representatives, with only rational basis review conducted by the courts? Or, finally, what about the state legislature that passes a law permitting the police to enter any private residence a former drug addict has visited, and includes in its legislation a finding that this would be consistent with the Fourth Amendment?

Of course, it would be hard to defend a position against the judicial making of law in these scenarios, which goes to prove that Justices must "make" constitutional law all the time. It's the only way to decide a constitutional case.

So the question for Ms. Miers is not whether she would make law, as a Justice, but when: Where would she draw the line on making law at the Supreme Court?

Senators cannot reliably answer this question based on Miers's background. And it's possible that, even if they question her about it, she herself may not know the real answer unless and until she is actually on the Court.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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