Though probably well intentioned, George W. Bush's use of religion in the defense of his decision to nominate Harriet Miers for the Supreme Court could end up doing great harm to public perceptions of the constitutionality of the effort to restore judicial respect for the moral foundations of our constitutional system.

Reported the Associated Press Thursday:

Bush defended his nomination, saying Miers was highly qualified, a trailblazer in the law in Texas and someone who would strictly interpret the Constitution – something his conservative supporters want evidence to support. He said his advisers' comments about Miers' churchgoing were meant to give people a better understanding of his little-known nominee.

"People are interested to know why I picked Harriet Miers," he said. "They want to know Harriet Miers' background. They want to know as much as they possibly can before they form opinions. Part of Harriet Miers' life is her religion."

Bush's statement leaves the definite impression that Harriet Miers' religion was one of the reasons he selected her. Now, as president he is sworn to uphold, protect and defend the Constitution. The Constitution (Article VI) states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Clearly, this means that no one can be barred from office because of their religious affiliation (a point I and other conservatives have argued strenuously in the face of liberal persecution of openly religious judicial nominees). Yet if religious affiliation is cited as a basis for preference in the nominating process, doesn't this preference constitute a barrier to those without the affiliation? If so, it would be improper for this or any other president to make religious affiliation a key element in his judgment about an individual's qualifications for office. If President Bush has done so in Miers' case, her nomination is tainted by this constitutional impropriety and should be withdrawn.

Whatever his personal inclinations, in his official capacity the president may properly take account of the words and actions that result from an individual's religious beliefs, but it is their quality, not the religious affiliation itself that constitutes the basis for his official judgment. For example, given the teachings of Buddha, an individual ought to show consideration for the life and worth of every individual. If she has done so, the president may properly consider her actions as an indication that she would show due respect for the rights and dignity of each person when adjudicating cases that arise under the Constitution. Her actions, not the religious beliefs that motivate them, are the proper constitutional basis for his deliberation.

In the present situation, this would mean that the president and his advisers may properly cite words and actions indicating that Miers would respect the Constitution's purposes and requirements, but in the absence of such words and actions they cannot substitute her religious affiliation as proof of her judicial temperament or philosophy. Because the nomination suffers from an entire lack of such consequential evidence, the White House has been driven to try this substitution, but it defies both the Constitution and common sense. Everyone knows that the mere outward show of faith or belief is not at all a reliable predictor of behavior. Moreover, when selecting an individual for one of the highest and most critical offices in the land, mere indications of quality cannot substitute for proven experience.

President Bush has thus exposed himself to the imputation of constitutional impropriety as he proposes someone for a position that especially involves understanding and defending the integrity of the Constitution. He has come to this incongruous position partly because of the fundamental weakness of the Miers nomination – her lack of proven competence dealing with constitutional issues in any context. (It would be fair to ask, for instance, why she herself did not advise the president against the line of argument the White House has taken in her defense.)

But this nomination is also the consequence of a more fundamental defect in the current environment for judicial nomination and confirmation. False notions of the requirements of judicial fairness and independence are making proper scrutiny of judicial nominees virtually impossible. While being offered verbal assurances that they will respect the law and the Constitution, we are told, that no ideological questions should be posed to test judicial nominees. Yet without such questions, how is it possible to evaluate their assurances?

The Constitution is the highest law of the land, but it is also an instrument of government. The U.S. Constitution (Article IV) makes the maintenance of a republican form of government in the United States a strict obligation of the federal government. Can someone properly lay out and apply the Constitution if he ignores this purpose and has no understanding of or regard for the form of government it entails?

The different forms of government (e.g., despotic or republican, dictatorial or constitutional, democratic or oligarchic) embody different ideas about justice, about what constitutes right and wrong, and about the nature and implications of our common humanity. An account of these ideas (literally, an ideology) constitutes the basis for reasoning about the nature and requirements of each form of government, and someone who cannot give such an account cannot be trusted to reason or judge appropriately about what preserves and secures it.

An experienced judicial nominee for the Supreme Court usually comes before the public (and its constitutional representatives in the U.S. Senate) with a proven record that can be scrutinized for indications of his or her competence in this area. Confronted by a nominee with no such record, no one can make a rational judgment about her qualifications until and unless she has demonstrated her understanding of the ideas that constitute our republican form of government. Her ideology (or lack thereof) becomes the central issue of the confirmation process because it will provide the only indication of her qualifications with respect to this fundamental element of constitutional competence. She cannot in judicial argument, uphold, protect and defend what she does not understand and cannot articulate.

Obviously, throughout U.S. history there have been disagreements about the nature and implications of the ideas that constitute our republic. These ideological differences have inevitably taken the form of constitutional disputes that eventually make their way to court and to the Supreme Court. Is it possible seriously to examine a nominee's ideological competence without exploring the issues that occasion these differences? Is it possible for a nominee to answer questions about these issues without revealing ideas that reflect one side or the other of an ideological controversy? Is it desirable to place on the Supreme Court individuals whose ideas about fundamental questions (like the source and meaning of unalienable right or the basis for the doctrine of human political equality) we believe to be contrary to the requirements of the form of government our Constitution requires? If, with no sense of a nominee's competence in this area, a senator votes to approve the nomination, has that senator violated his own sworn duty to uphold, protect and defend the Constitution of the United States?

The notion that we want unbiased and impartial judges is not entirely sufficient when dealing with judicial nominees, particularly those who will sit on the Supreme Court. We want judges who will be biased in favor of republican government, in favor of unalienable rights, in favor of government based on consent. Unless in this regard their ideological bias is clearly established, we can have no confidence that their judgments will preserve the Constitution.

By emphasizing her religious affiliation, President Bush has been trying to reassure constitutional conservatives that Harriet Miers is biased in the right way. But he should not have to resort to cryptic and constitutionally dubious arguments to prove this point. Issues of ideological competence should be openly cited and discussed, based on references to republican principles and ideas clearly available to us as part of our history and heritage. If his decision to appoint her was not based on such provable competence, then he should reconsider it.