Are we to take solace from the “fact” that Harriet Miers decided to accept Jesus Christ as her savior in 1979? After a bit more than a day of hand wringing by the conservative wing of the Republican Party about Bush’s failure to fulfill their lifelong dream of putting a “real” conservative on the bench, Mr. Bush sought to allay their fears that she wasn’t “one of them” by assuring his extremist constituency that she shared his views. That pronouncement was followed in short order by the beginnings of a certainly careful media campaign to assure and reassure Bush’s core support of counsel’s Christian and conservative pedigree with the release of articles detailing her private, late night soul searching conversations with fellow law partner, Nathan Hecht that ultimately resulted in her rebirth as a Christian.
While that may be good news to the Richard Vigueries of the world and the religious fundamentalists who comprise the bulk of Bush’s support, the news should not be taken well by the majority of Americans who simply believe in the integrity of our Constitution and in a democracy that has been able to survive -- quite well, thank you -- without shifting the government to a theocracy.
I do not raise these concerns because I have pre-judged Harriet Miers or the judicial philosophy she will follow as she evolves as an Associate Justice of the Supreme Court. I was not one who joined in the knee-jerk reaction in opposition to Bush’s selection of John Roberts to initially replace Sandra Day O’Connor and then William Rehnquist. If nothing else, ascension to the High Court has had a most sobering effect upon virtually all those nominated to its service, forcing most to recognize that the Court represents the very essence of the law and the means by which a dispute is resolved. It is that recognition above all else which led jurists like John Paul Stevens, Anthony Kennedy and others – all envisioned by the right to be standard bearers on the court – to recognize first, foremost and forever that it is to the Court and to the rule of law that they owe their only obligation. John Roberts would appear to recognize and understand that responsibility even before he donned his robs on the first Monday of this October. Harriet Miers, should she survive the nomination process, may also come to understand the enormity of her responsibility to the constitution and distance herself from any political agenda which prompted the submission of her name to succeed Justice O’Connor.
That Bush feels the need to defend her nomination by emphasizing her religious devotion rather than her legal skills should give one more than a moments’ pause and raise concern about her capacity to understand and honor her commitment to the law and jurisprudential processes which dominate the disposition of cases which come before the Court. There is, after all, perhaps no greater principle built into the Constitution which defines our democracy and distinguishes it from every other social experiment that exists today or has gone before than our agreement to separate religious observance from social governance. Those on the right who demand that religion play a greater role in our governance simply do not understand the Constitution and why this democracy has succeeded when so many others have not. The alternative to that which has guided us over the past two hundred thirty years is the type of theocracy which took hold in Afghanistan after the Soviet Union was forced out and in Iran following the fall of the Shah in 1980 – a fundamentalist interpretation of Islam that enforced theocratic principals and, in the process, led to much suffering at home and abroad. The religious right in this country seeks to impose its will upon the general population along the same lines as the Taliban in Afghanistan and the Shiites in Iran by pushing for legislation that blurs the lines between Church and State and reshaping the Courts to ensure that when challenged those laws will be survive in the context of a new interpretation of the First Amendment. One need only to look at the chaos and turmoil that surrounded the effort to “save” Terri Schiavo’s life to understand what this political and social shift would mean to the country and our ability to govern as we have since the inception of the our democracy. Is it truly in our best interest for judge’s to live in fear that they will be subject to recall and impeachment if they fail to rule as the religious right believes they should?
There is, of course, nothing wrong with a Justice of the Court, regardless of its level, being religious and seeking solace and guidance from G_d. The problem for any government is when that solace and guidance finds its place in the interpretation of legislation and the resolution of disputes. It is first, last and always the Constitution which must control all decisions by the Court. That Ms Miers has found Jesus, I’m sure, is of great comfort to her, to Mr. Bush and to the religious right (at least the Christian religious right). Ultimately, however, it must be the Constitution and not the writings and pronouncements of Jesus which must guide her. She must understand and accept that by becoming a Supreme Court judge her first responsibility is to safeguard the Constitution, even at the expense of her own convictions.
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