Shakier & Shakier

For that handful of Bush-backers who "want to believe" and are desperate for any excuse to give the President the benefit of the doubt on his nomination of his underwhelming friend Harriet Miers to the U.S. Supreme Court, things are not getting any easier.

The ill-considered touting of Ms. Miers' religious faith is already boomeranging on the White House:

Shortly after Bush named John Roberts to the Supreme Court, a few Democrats, including Senator Richard Durbin (D-IL), suggested that the nominee might reasonably be questioned about the impact of his religious faith on his decisions as a justice.

Durbin had his head taken off. "We have no religious tests for public office in this country," thundered Senator John Cornyn (R-TX), insisting that any inquiry about a potential judge's religious views was "offensive." Fidelis, a conservative Catholic group, declared that "Roberts' religious faith and how he lives that faith as an individual has no bearing and no place in the confirmation process."

But now that Harriet Miers, Bush's latest Supreme Court nominee, is in trouble with conservatives, her religious faith and how she lives that faith are becoming central to the case being made for her by the Administration and its supporters. Miers has almost no public record. Don't worry, the Administration's allies are telling their friends on the right, she's an evangelical Christian.

Sure, E.J. Dionne is a bottom-feeding journalistic hack. And oftentimes the value and integrity of the WaPo isn't worthy Alpo. But just as stopped clocks are right twice a day, so Dionne is pointing out the obvious here. Not only is the Bush White House attempting to foist Harriet Miers on a GOP base that is manifestly unhappy with this swindle, but they're exploiting her religious faith as the sugar to make the castor oil go down. It's not only rank hypocrisy, but the height of cynicism and tokenism as well, and gives the Democrats carte blanche to turn every future judicial confirmation into a full-blown Christophobic inquisition.

Cap'n Ed takes a look ahead at the implications:

Do we really want to use Congress for this kind of debate? No; it will take an already divisive process and start the kind of debilitating social stress that the Founders wanted to avoid in Article VI, Clause 3 of the Constitution. Congress does not exist to pursue the True Religion or the Meaning of Creation; it exists to provide rules of law that the Executive enforces and that the Judiciary considers when ruling on cases brought before it.

If Miers' evangelicalism remains the top selling point of her nomination, then I submit that the White House has already lost this battle.

Interestingly, even the Christian community itself is proving to be a hard sell:

[C]hurch involvement alone has not been enough to assuage Christian conservatives.

"Our lack of knowledge about Harriet Miers, and the absence of a record on the bench, give us insufficient information," said Tony Perkins, of the conservative Family Research Council....

John Green, an expert on religion and politics at the University of Akron, said evangelicals are acutely aware of the diverse beliefs within their own movement; someone who shares their faith may not necessarily hold the same political outlook.

"Does she connect her beliefs up to politics in the way that they would like? I think the answer is they just don't know," Green said.

Of course, if Ms. Miers had any other selling points, the Administration wouldn't have to rely upon this one. Unfortunately, there is nothing in her background to suggest she's even qualified to be White House Counsel, to say nothing of hurling lightning bolts from Mt. Olympus.

As to her supposed "strict constructionism" that the President has somehow divined, that is becoming dwindlingly obvious as well:

The problem is not that Harriet Miers stands outside the elite legal establishment but that she is very much part of it. The Bush Administration, searching here and there for a marketing point to quiet skeptical conservatives, has been touting her simple, populist virtues. But her substantial involvement in the American Bar Association suggests she's spent far more time in the company of judicial activists than in the company of unfashionable originalists whose understanding of the Constitution corresponds to the common sense of ordinary Americans.

Would that Miers did lack credentials. Unfortunately, she possesses the very conformist credentials the legal elite responsible for decades of destructive jurisprudence find most reassuring. There is very little evidence yet - apart from her procedural opposition to the ABA's abortion stance - of a nonconformist streak in her. To overturn the unconstitutional growths metastatizing under stare decisis requires Scalia-like nonconformity. Is Miers capable of bucking the ABA culture that contributed to forming her?

This speaks to a couple of specific taunts thrown by Miers backers. She doesn't have to be a "flaming liberal" to be a "disaster" on the Court. Just being mediocre and a non-boat-rocker will leave her shoved inexorably leftward because in Olympus' rarified air, standing one's consitutionalist ground requires active resistance against the prevailing left/oligarchist philosophical winds. This speaks to the notion of our "not knowing that she'll be a disaster" - even if she started out in the vicinity of originalism, the "absense of a non-conformist streak" to which George Neumayr refers would make her ideological bulldozing toward the oligarchist camp a fait accompli.

He asks a very inciteful question about Miers' personal legal background:

Were Antonin Scalia head of the ABA's rules and calendar committee in 1998 like Miers, would he have submitted for discussion on behalf of his colleagues motions endorsing homosexual adoption and the formation of an International Criminal Court?...

Kind of a rhetorical question, isn't it?

The White House has said that this doesn't prove agreement with her colleagues. Okay, but it does prove cooperation with them. And is working-well-with-peers a quality desirable in a potential justice with whom 4 to 5 of her peers are sure to behave like judicial activists? That she was "just going along with what others wanted," both on this matter and possibly in her donations to Democrats like Al Gore and Lloyd Bentsen, undermines the White House's confident prediction that she will show impervious, changeless leadership on the court for decades to come.

Mr. Neumayr's peroration is relentless and inescapable:

Much of President Bush's praise of her is beside-the-point, because it doesn't bear on the two qualities essential in a strict constructionist: a deep and lucid understanding of the Constitution and the resolute character to apply that knowledge in the face of withering scorn from the legal establishment....

The superficial, PC decision-making surrounding Miers's selection - Laura Bush wanted a woman on the court, Bush was impressed by Miers's status as a female "pioneer" in his home state and so forth - just adds to the impression that this choice will not dislodge Sandra Day O'Connor's influence on the court but reinforce it.

Here's a question to ponder: if George W. Bush had run on the promise to appoint unqualified mystery-meat naifs like Harriet Miers to the highest court in the land, would he have ever become president in the first place?