How Would Jesus Rule?

The perils of religious tests for Supreme Court justices

Harriet Miers' religious affiliation doesn't bother me, but the fact that some people find it reassuring does. This reaction by social conservatives who support her nomination to the Supreme Court suggests they expect her decisions as a justice to hinge on her faith.

Although President Bush insists he wants Supreme Court justices who apply the Constitution instead of twisting it to fit their personal preferences, he invited conservatives to rely on religious cues in judging Miers. Upon nominating someone with no record of taking positions on constitutional issues as a judge, litigator, or scholar, he assured them, "I know her heart."

The White House played up Miers' conversion to evangelical Christianity, her membership at Valley View Christian Church in Dallas, and her church-related volunteer work. It dispatched Texas Supreme Court Justice Nathan Hecht, who facilitated Miers' "born again" experience, to vouch for her religious credentials. Although many conservatives remain skeptical, some seem to think Miers' good Christian heart qualifies her to serve on the Supreme Court.

"When you know some of the things I know," Focus on the Family President James Dobson said on his radio show shortly after Miers was nominated, "you'll know why I've said, with fear and trepidation, [that] I believe Harriet Miers will be a good justice....If I have made a mistake here, I will never forget it. The blood of those babies who will die will be on my hands to a degree."

As that comment indicates, abortion is the issue foremost in the minds of religious conservatives as they contemplate the prospect of Justice Harriet Miers. Dobson later explained that "the things I know" referred to Miers' religious identity, her affiliation with "a very conservative church, which is almost universally pro-life," her campaign against the American Bar Association's support for abortion rights, and her former membership in Texas Right to Life.

But as Dobson's "fear and trepidation" reflects, Miers' opposition to abortion won't necessarily translate into a vote against Roe v. Wade, the 1973 decision that pulled a constitutional right to abortion out of hot air. For all we know, Miers thinks Roe is a reasonable extrapolation from principles embodied in the Constitution.

Although the possibility that Miers sees nothing wrong with Roe may seem slight, it cannot be ruled out given how little is known of her constitutional thinking. More plausibly, Miers may believe Roe was wrongly decided yet resist overturning "settled law" to which judges, legislators, and millions of ordinary Americans have become accustomed during the last three decades.

The problem with trying to guess Miers' judicial philosophy based on her religion is that one should have nothing to do with the other. A justice who votes to reverse Roe should do it for the right reason: not because abortion is wrong but because the Constitution, properly understood, leaves the regulation of abortion to the states.

The reason matters because abortion is not the only issue the Supreme Court will confront during the next few decades. If Miers simply would replace Roe author Harry Blackmun's result-oriented jurisprudence with her own, shaped by the teachings of her religion, she would be no less a threat to the Constitution than the liberal judicial activists whom conservatives love to condemn.

Not so long ago, the president's partisans were accusing Democrats on the Senate Judiciary Committee of trying to bar Catholics from the bench by opposing judicial nominees who consider abortion immoral. Since "people of orthodox religious beliefs" are against abortion, the pro-Bush Committee for Justice said, automatically disqualifying anti-abortion nominees is tantamount to imposing a religious test for public office.

Now Miers' supporters are touting her faith as one of her main qualifications for the Supreme Court, which suggests that a nominee with different religious beliefs (or none at all) would be less fit. Apparently religious tests are OK as long as they work in the president's favor.

Jacob Sullum is a senior editor at Reason and the author of Saying Yes: In Defense of Drug Use. Sullum's weekly column is distributed by Creators Syndicate. If you'd like to see it in your local newspaper, please e-mail or call the editorial page editor today.

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