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Thursday, October 13, 2005

The Super-Sneak, Double-Back, Reverse Religious Test?

Having posted on the religious test question in the context of the Roberts nomination (see, e.g., here and here), I've been slow to write on this question in the context of the Miers nomination, in large measure because I wanted to see what information  emerged.  While I'm not sure I have all the information I need, allow me to set out some pertinent facts below and offer some thoughts.  For those of you who are too lazy or sensible to continue beyond the jump, the upshot is: properly speaking, there is no religious test problem here; more broadly, events surrounding this nomination raise questions about transparency and cynicism and make clear that clumsy treatments of the intersection between religion and law are not the sole province of the left, or of the non-religious; and I am disappointed that the Becket Fund, which embraced a broad view of the Religious Test Clause where religion is a disqualification for judicial office, has not been equally liberal in its views of whether religion may permissibly serve as a qualification for judicial office.

First, some facts.  Not all of them, but let me point to some relevant ones.  The first sign that religion might be relevant to the Miers nomination came from Dr. James Dobson's early comments in support of the nomination, in which he said he was privy to confidential information he was not at liberty to reveal, and added that Miers was "a deeply committed Christian."  Dobson has since disclosed more details of his conversation, which was with Karl Rove.  Assuming Dobson's honesty, some of the confidential information related to the news that some other nominees had asked to be taken out of consideration for the job.  The other confidential aspect of the conversation was Rove's assurance to Dobson that Miers "is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life."

Add to this two more sets of facts.  First, according to a Washington Post report from last week, the White House was planning "to regain the upper hand [in defending the nomination] by focusing on the nominee's conversion to evangelical Christianity."  The article suggests that at least one thing the nomination had in mind was that Miers' Christianity would foreground issues relating to religion, such as sodomy and abortion, thus casting the nomination struggle in a left-right mold that would madded the left and fire up the right.  Second, the administration has clearly made Miers' religion part of an "outreach effort" to conservatives as it attempts to sell her nomination.  Asked about this yesterday, the President said, "People ask me why I picked Harriet Miers," Mr. Bush told reporters in the Oval Office....They want to know Harriet Miers's background, they want to know as much as they possibly can before they form opinions. And part of Harriet Miers's life is her religion."  Note that the President did not say he had selected Miers because of her religion. 

What to make of all this?  Read on....

1) A Religious Test?:  The first question is whether Miers is in some way either subject to disqualification as a nominee because of her faith, or would be if the administration had selected her solely or primarily on this basis.  Given what I've already written on this subject, no one will be surprised when I say the answer is, no.  I would be deeply troubled by an administration that selected people on the basis of their religion, and excluded candidates of a different faith or no faith at all.  Happily, so would many people, so the political process would address this fairly well (although I won't hold my breath where vocal atheists or members of non-traditional minority faiths are concerned).  But, like Rick, I believe religious "voices and commitments" should be "welcome in the public square."  Moreover, Presidents may reasonably seek men and women of good character to serve in judicial and other offices, and religious commitments may be seen as a sign of that good character.  For these reasons and on the basis of what I've already written about the Religious Test Clause, I don't see this as an issue here.

2) Transparency:  That doesn't mean one ought to be sanguine about how all this has played out.  One issue is that of transparency.  Is the administration defending its nominee one way privately and another way publicly?  On this point, some nuance is required.  I don't think an administration is in any way barred from discussing a nomination privately with its supporters (or opponents) in the Senate or elsewhere.  I don't doubt that this happens in all administrations, at least in the modern era.  Nor do I have any problem with the administration talking to, say, Dr. Dobson, a prominent religious conservative, in advance of announcing the nomination.  But I am disturbed -- not outraged, but disturbed -- by the impression I get that there is a good deal of space between what the administration is saying publcly about the nomination and the justifications they are offering, and assurances they are making, through private channels.  I am not outraged at least in part because, where someone acts with a mix of motivations, private motivations may be less relevant or disqualifying if there are plausible publicly accessible reasons to support the action.  But when an administration actively sells a nomination privately on one basis and publicly on another, I think that is cause to feel that the process is not functioning at its best and highest level.

3) Cynicism and Clumsiness About Religion:  The last point is related to this one.  Although the administration has, somewhat clumsily, said that religion is relevant only as part of Miers' background and not to the question of how she would rule, I think any reasonable observer understands that it is largely playing a double game here: using Miers' faith on the one hand to make clear to conservatives that she will rule as they want and won't become another Souter, and retreating on the other hand to the position that religion is irrelevant to anything other than her character and private beliefs.  This is, I think, an illustration of the reasons why the metaphor of the wall between church and state was originally intended largely to protect religion from the state and not the other way around.  Religion is a profoundly important part of our polity, and ought to be welcome in the public square.  It ought to be taken seriously.  But it ill comports with the highest regard for the role of faith in public life to use religion as a public tool in this disingenuous way.  Of course, this goes both ways: it can be cynical to use religion as a proxy for other issues, such as abortion, in defending or opposing a nominee rather than discussing those issues directly.  There is nothing wrong, I think, with noting the ways in which a nominee's deep relationship to his or her faith demonstrates certain kinds of praiseworthy character traits (although, to my mind, those traits are not the sole province of the religious believer).  But when the administration publicly claims Miers' religion is irrelevant to her judicial rulings, but privately goes to some lengths to signal its supporters that if you know her faith, you know how she will rule, I think we can fairly charge the administration with a cynical treatment of religion.

This cynicism is the more bothersome because the administration, in all but (perhaps) a realpolitik, Jerome Frank-like sense, is right: a candidate's faith should not affect his or her rulings on the bench.  Like Rick, for instance, I don't think Chief Justice Roberts' Catholic faith indicates how he must rule on abortion questions.  It is possible he might feel the need to recuse himself on certain cases (I'm not saying Catholic doctrine demands it, for the reasons Rick has discussed; I am suggesting Roberts as an individual might feel so compelled, even if his faith does not strictly require it); but his faith certainly does not order him to adopt any different method of constitutional interpretation for some cases than he would in any other case, and the evidence from his nomination suggests he feels the same way. 

Yet the administration has apparently sold nominee Miers on the basis that she is, in Dr. Dobson's recounting, "an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life."  It is difficult to read this sentence, conjoining her faith and her work on abortion-related issues in the context of her nomination to the Court, as something other than an assurance that her faith will compel her to vote a particular way on Roe v. Wade.  If that's true for Miers, it suggests she is incapable of following her constitutional oath as a Supreme Court Justice (and it is for this reason that I believe that some scope of senatorial questioning is permissible on these subjects, perhaps more so than Rick).  If the proposition is untrue, as I think, because religious individuals can follow their faith and their obligations as judges, then it suggests the administration itself holds a fairly clumsy understanding of the intersection between law and faith.  This is a healthy reminder that just as those who are non-religious or non-devout can misunderstand the intersection between faith and law from their non-religious vantage point (see, e.g., this), so too can religious individuals (and I will so characterize the administration, but the point applies elsewhere as well) misunderstand the same intersection from their vantage point.  Those of us who believe in the importance of religion, that religious individuals are fully entitled to participate in the public square, and that good faith and careful, nuanced thinking are required in thinking about both the religious and the legal/political issues involved should, I think, be somewhat disturbed and somewhat critical of the administration's behavior so far.

4) Double Standards and the Becket Fund:  Finally, let me refer back to my earlier discussion of the Becket Fund, which earlier had warned Senators that it would file an ethics complaint against any Senator who "use[s] fervent religious faith...as itself a disqualification for public office."  The Religious Test Clause, of course, does not refer to religion as a disqualification, but to the use of religious tests "as a Qualification to any Office . . . under the United States."  Although the Fund rightly points out that this meant in practice that religion was used to disqualify individuals because of their faith, similar issues are raised where an administration treats a particular religious faith as a prerequisite for the holding of public office, particularly if that means some folks need not apply.

Now, let me be clear here.  Given my narrow view of the Religious Test Clause, as I said above, I don't think there is a problem here.  And like the Fund, I agree that religion is "a natural part of one's background" and may be referred to publicly.  Moreover, I think an administration is entitled to select nominees on the basis of predicted future rulings on issues like abortion; and although I think it is clumsy and in some ways disrespectful to use faith as a proxy when doing so, I also think it is perfectly permissible. 

But, as I said, I take a narrow view of the Religious Test Clause.  It's not clear the Fund does.  It referred in its letter to "subtler form[s] of religious test[s] in the confirmation process," and its application of that idea in the context of the Roberts nomination suggested the Fund does think it is impermissible to use religion as a proxy for one's judicial views, at least when considering a nominee's disqualification.  If the Fund means it when it says it is concerned about "subtler" emanations of the no-religious-test principle, and unless it views religion as a one-way ratchet, which may be used to qualify a religious candidate, and thereby disqualify candidates of other faiths or no faith, but not as a direct disqualification (and I must point out that no one in the Senate suggested that Roberts was directly disqualified by virtue of his faith), then I would expect that the Fund would speak out again on these issues, and warn the President and the Senate against a mirror-image but equally disturbing treatment of religion in the Miers nomination.  The Fund is a non-partisan group, and has demonstrated a willingness to represent people of all faiths and to take religious issues seriously in a variety of contexts.  It also plays a role in entering the broader public dialogue about these issues and not merely relying on litigation, as its letter to the Senate suggested.  If it takes those functions seriously, it ought to caution the political players in this fight that religion is neither a qualification nor a disqualification for public service, and urge far more thoughtful treatment of religion on the part of the administration than we have seen so far.  There are reasons for the Fund to be "appalled" once more "by the misuse of religion" in the nomination process. 

Let me close this lengthy treatment with a quote from Joseph Cella, president of a Catholic-based advocacy group, in the National Review Online:  "The bottom line is that while some might think Miers’s religion provides an early indicator of her view of the interplay between morality and the law, her faith does not do much to bolster the case that she would be faithful to the Constitution. By itself, it provides no reason to support or oppose her nomination. Faith is too precious to be used as a trumpet or as a sword by those who either support or oppose a nominee."   

Posted by Paul Horwitz on October 13, 2005 at 02:56 PM in Constitutional thoughts | Permalink


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You won't find much in the caselaw. You might start with Torcasco v. Watkins, 367 U.S. 488 (1961), although that won't be terribly helpful for your purposes. See also cases at 895 F.2d 104 (2d Cir. 1990) and 316 F. Supp. 1081 (DDC 1970). You might also check out articles by Gerard Bradley, Gregory Sidak, Sanford Levinson, and a recent note by Winston Calvert. As much as I love the issue and as much as I believe con law should include issues of the constitution outside the courts, I am not sure where I would fit such a diversion; if in a con law I-type course only, without any discussion of religion and the constitution (which is where I would otherwise locate it), I'd probably have to fit such a discussion somewhere around the political question doctrine, although one could stretch and include it in the discussion of federal interbranch relations.

Posted by: Paul Horwitz | Oct 13, 2005 7:42:28 PM

Prof. Horwitz, I too am fascinated and a bit concerned about the use of religion by the White House and other supporters of Miers. I am teaching Con Law for the first time and looking for a way to stick in something about the Religious Test. I see only one 9th Circuit case from 1995 that even mentions the Religious Test clause. Besides some portions of the Federalist, do you have an idea about how I should teach this?

Posted by: Edward Still | Oct 13, 2005 5:51:40 PM

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