Harriet and George

Gerard Baker:

The trouble with Harriet is that it's the conception that's all wrong. For decades conservatives in America have had to put up with a judiciary that clings obstinately to the verities of New Deal and Great Society liberalism; activist, interventionist judges repeatedly "finding" new constitutional rights that fit with their own political outlook. At last, President Bush had an opportunity to reverse that. Three months ago, he picked John Roberts to be first an associate of the nine member court, and then chief justice. It is hard to think of someone who better personifies the conservative's ideal of what a judge should be--brilliant, experienced, humble, wedded to the juridical principles of limited government.

And then along comes Miers to fill the spot on the Court that could prove to be the pivotal one, the position that could change the direction of American jurisprudence for decades. We don't know much about Miers's views on the Constitution--that in itself is not a good sign, though she might, admittedly, turn out to toe the Roberts line admirably. But we know a lot about what the White House was thinking in proposing her.

First, she is a woman, probably necessary to fill the position left by Sandra Day O'Connor. But there were many far better qualified female candidates for the Court than the White House counsel, so why Miers?

The answer is not just her proximity to Bush for all these years, but her religion. In an attempt to put out the fire on the right lit by the
nomination, White House officials have been reassuring supporters that Miers is fine because she is an evangelical Christian, who can be relied upon to vote accordingly.

This is about as troubling as it gets. It's not that there's anything wrong with evangelical Christianity. It is just that it should not, cannot, be the principal credential for appointment to the highest ranks of the American judiciary. It not only represents a breathtaking disregard for the principle that there should be no religious test--established in the Constitution--for public officials. It represents a profound lack of seriousness about conservative philosophy. The problem with Roe v. Wade, for example, is not that it is unchristian, but that it is a constitutional monstrosity. In appointing Miers, Bush is actually undermining conservative values by equating them with religious precepts. Whatever judgments she reaches on any issues, from abortion to the death penalty to the separation of Church and State, can be dismissed as simply a religious view, detached from jurisprudential thinking.

The trouble with Harriet is that she has given us a depressing glimpse into the vast open space that now appears to be the Bush political mind.

The nomination is in serious trouble.