In recent years, the religious faith of judicial nominees has become a big issue. Some conservatives have accused Democrats of bias against “people of faith” and have made the argument — absurd, in my opinion — that it is “religious bigotry” to question an appointee’s political/ideological views if they happen to be faith-based. (Would that principle extend to a judge who opposed the death penalty or military conscription based on religious convictions?) When John Roberts was nominated to the Supreme Court and some critics raised the question of whether his strong Catholic faith would affect his ability to rule impartially on issues involving Catholic morality (read: abortion), religious conservatives cried foul and argued that it was unfair and “chilling” to presume that Roberts’s decisions would be governed by his personal religious views rather than law and constitutional principle.
Well, now we have this:
To persuade the right to embrace Ms. Miers’s selection despite her lack of a clear record on social issues, representatives of the White House put Justice Hecht on at least one conference call with influential social conservative organizers on Monday to talk about her faith and character.
(Justice Nathan L. Hecht, now on the Texas Supreme Court, is a former colleague of Miers’s who was apparently close to her at the time of her conversion to born-again Christianity.)
The article goes on to say:
Some evangelical Protestants were heralding the possibility that one of their own would have a seat on the court after decades of complaining that their brand of Christianity met condescension and exclusion from the American establishment.
In an interview Tuesday on the televangelist Pat Robertson’s “700 Club,” Jay Sekulow, chief counsel of the Christian conservative American Center for Law and Justice, said Ms. Miers would be the first evangelical Protestant on the court since the 1930’s. “So this is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court,” Mr. Sekulow said.
As David Bernstein puts it at The Volokh Conspiracy: “[T]he president sends his minions to drum up support based on her personal religious philosophy.” But if Republicans can use Miers’s personal faith to reassure the base that she will vote “the right way” on social issues, then why can’t those who don’t agree with that agenda be suspicious of her for the same reason?
Mind you, based on what we currently know, Miers doesn’t seem likely to legislate her personal morality from the bench (her favorable attitude toward adoptions by same-sex couples is a case in point). She strikes me as — for better and worse — a pragmatist first and foremost. What interests me, however, is the double standard. I’m reminded of an old Soviet joke: A petitioner with some grievance goes to the Kremlin and demands to see Lenin. “Are you crazy?” an official tells him. “Lenin’s been dead for a long time!” “I see,” says the petitioner. “So when you need him, he lives forever — but when I need him, he’s dead!” (“Lenin lives forever” was a ubiquitous Soviet propaganda slogan.) Similarly, it seems, a nominee’s faith can be relevant when it’s convenient for the Republicans, but not when it’s convenient for the Democrats.
Sorry, guys. If it’s sauce for the conservative goose, it’s sauce for the liberal gander.
Update: A reader at The Volokh Conspiracy makes the same point; David Bernstein agrees.