Hang Onto Your Hat

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The New York Sun

It looks like the confirmation battle over Harriet Miers is going to be quite a show, full of ironies. Start with the fact that we have just come from a confirmation fight, in respect of Chief Justice Roberts, in which the Republicans have been mocking such Democrats as Senators Schumer, Clinton, Harkin, Kerry, and a few others for ending up on the far fringe of their own party, 22 of whose members, including such staunch liberals as Senator Leahy, ended up voting for Justice Roberts along side of Orrin Hatch and Chas. Grassley and Jon Kyl. Suddenly conservatives who only days ago were lauding the new mainstream in America for its conservative coloration are talking about opposing, upon receipt of an imperative from George Will, a candidate for the high court who could well enjoy the support not only of President Bush and Vice President Cheney but even of Harry Reid and Chas. Schumer.


Or not. We’ll see. We share the concerns being heard on the right. But the prospect of a conservative boycott of this nominee invites the suggestion that the Republicans take a deep breath. The Wall Street Journal made, on Tuesday, what we thought was an apt point, which is that, while the president is asking the conservatives to trust him on Ms. Miers, he deserves, if his track record on judges is a guide, some deference. Quoth the Journal: “His appellate nominees have been uniformly solid, and often distinguished. One of those nominees was John Roberts, who at 50 years old is now the Chief Justice. For five years Ms. Miers has been part of the President’s judicial-selection committee that promoted those nominees, and for the last year was its chairman.”


On the second day, the press rushed in with the news that Ms. Miers is an evangelical Christian. As an adult, she had a religious awakening and joined a church that opposes gay marriage and abortion, and she plays, reports in the Times and the Washington Post suggest, quite an active, if private, role in her church. Why do we have the feeling that this will bring many of the conservatives around and scare away some of the liberals who, at first blush, greeted her so warmly? This is a time to remember Article 6, Clause 3 of the Constitution, in which the Founders enjoined that no religious test shall ever be required for any office of trust under the United States. We’ve said it here before, but it’s worth repeating that the Founders could not have been more emphatic. No. Ever. Any. It’s American bedrock.


And to remember that what one swears or affirms – the Founders provided for those who are forbidden to swear – to preserve and protect when one accedes to the high court is not the Bible but the Constitution. So if one believes that Ms. Miers fears God and if one also watches her swear with her hand on a Bible, one has to conclude that she will do that to which she swears. All of which ought logically to lead this debate back at some point in this confirmation to constitutional principles. We were disappointed that Mr. Bush picked a lottery commissioner rather than a constitutionalist. But if in the course of the coming hearings Ms. Miers can present credibly as someone who believes, like Chief Justice Roberts, that judging is different from politics and also different from religion, she will, we expect, emerge with a healthy majority in the Senate from which neither conservatives nor liberals need lurk away in the margins on ideological grounds.


The New York Sun

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