Administration Stumbles on Miers

There are plenty of contradictions to go around, but the White House has made a grave mistake in emphasizing the religious affiliation of Harriet Miers, the President’s nominee to fill Sandra Day O’Connor seat on the US Supreme Court. Some on the Left, like E. J. Dionne, were the ones who were challenging former nominee Judge John Roberts based on his Catholicism. Of course, the religion of a nominee ought not to be important save to fill in one’s biography in much the same way that one would list the number of children a candidate has or his or her state of birth. This last week, the Bush Administration looked desperate as it tried to shore up Conservative support for Miers by winking and saying, well you now she is an evangelical Christian. To even subtly suggest that this background directs the way she would rule on specific cases is to do the Court and Miers a disservice. Dr. James Dobson is a Christian Conservative who leads the Colorado-based Focus on the Family ministry. He was apparently briefed by Presidential adviser Karl Rove on Miers and was quoted as saying, he was satisfied with Miers and he knew things about Miers “that I probably shouldn’t know.” Whatever information about Miers was provided, the press and Democrats jumped to the conclusion that Dobson was given private assurances about Miers based on her religiosity. Under normal circumstances, it would have been more difficult to make such inferences. In the absence of common knowledge about Miers, extrapolation on small amounts of information ought to have been expected by the White House. When Democrats, not so discretely, asked whether Judge John Roberts’ Catholic faith would make it difficult for him to be impartial in his rulings, the Right was properly indignant. When the White House emphasized Miers’ religiosity, it ceded moral high ground to some who are frankly irreligious or even anti-religious. How is possible to be consistent and now go back and criticize Senator Richard Durbin or Christopher Hitchens who tried to erect, however indirectly, a religious test for office. The White House really knows better than this, but was cornered into a precarious political position by nominating someone with no judicial record and little in writing to indicate her judicial philosophy. President Bush may have correctly intuited Ms. Miers’ judicial philosophy through years of close association, but surely there are others who with a similar judicial predisposition for whom a clearer record exists. Surely, there was someone else Conservatives could have united around rather than fought over. When Judge John Roberts testified before the Senate Judiciary Committee, there was a little unseemly vicarious pleasure to be derived by watching Roberts’ extensive learning and quick legal mind deftly slice up the pretentious arguments of Senate Democrats. The Democrats embarrassed themselves when they read prepared questions and stumbled as they tried to parry Roberts’ responses. Roberts casually and systematically demonstrated his extensive and superior understanding of Constitutional law. After Roberts’ performance, there is now a fear on the part of Conservatives that Miers may prove an embarrassment. She may be an accomplished attorney and even an excellent White House counsel, but this does not mean she has an adequate depth of knowledge in Constitutional law. Without a lifetime of study, it is difficult to call quickly to mind and comment critically on obscure legal precedents. Nominees are in part measured against expectations and perhaps this will save Miers. If Miers manages to acquit herself well at the Senate Judiciary Committee hearings, if she exceeds common expectations, she may erase the embarrassment of Conservatives and finally garner more unqualified support.

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