With their usual lack of understanding, the media (perhaps encouraged by the White House) has focused on Harriet Miers' church membership as an indicator of her approach to important moral issues should she be confirmed as a justice of the Supreme Court. The White House apparently assumes that assurances about her church attendance should be sufficient to mollify the anger and sense of betrayal the nomination has aroused among moral conservatives throughout the country.
Even – indeed, especially – from a Christian perspective, this assumption is a gross miscalculation. The popular phrase meant to capture the essence of Christian moral guidance is "What would Jesus do?" not "Where would Jesus worship?" Even that popular catchphrase doesn't exactly convey the standard Jesus articulated when it comes to our knowledge of other people. He said "By their fruits ye shall know them."
By either of these measures, there is little or no visible evidence of Miers' fruitfulness in areas of public policy or discourse relevant to the challenges she will face on the Supreme Court. In fact, as many have pointed out, the record suggests that for many years her profession of faith in Christ did not affect her support for people whose views directly contradict what she reportedly acknowledges as the moral standards of her faith. This would be consistent with comments made by Texas Justice Hecht, cited in several media articles as a fellow church member and sometime social companion of Miss Miers.
"Yes, she goes to a pro-life church," Justice Hecht said, adding, "I know Harriet is, too." The two attended "two or three" anti-abortion fund-raising dinners in the early 1990s, he said, but added that she had not otherwise been active in the anti-abortion movement. "You can be just as pro-life as the day is long and can decide the Constitution requires Roe" to be upheld, he said." (New York Times, Oct. 5, 2005)
Though logically absurd, Justice Hecht's statement points to a fact about the conduct of many supposedly pro-life people in public life today. They profess "personal views" against abortion or homosexual conduct, while maintaining a strict separation of conscience and conclusion when it comes to law and public policy. That's why the issue of Harriet Miers' church membership and even her personal profession of Christian faith do not prove her fitness for the Supreme Court. In that regard, what matters is not her "personal views," but her understanding of the moral principles of the Constitution, and their rational consequences.
Unfortunately, even many people who profess to be pro-life often fail to realize that as a matter of public policy the pro-life position is about public principle, not personal conviction. In this respect it is – like the issue of slavery in the 19th century or civil rights in the 20th – an issue that calls into question America's commitment to its founding ideals, chief among which is the declaration that we are all created equal and endowed by our Creator with certain unalienable rights. The doctrine of unalienable rights is to the Constitution what the laws of physics are to architecture or engineering. Those laws are not repeated in every plan or architect's drawing, but they are assumed and must be respected or the results will be defective and dangerous.
The pro-life position is based on a clear and simple fact: Legal sanction for abortion is inconsistent with the principle that all of us are created equal. However argued, the view that there is some right to abortion involves the judgment that on account of differences in physical development, one human being may with impunity take the innocent life of another. It also requires that we simply set aside the concept of creation, since equality established at the moment of creation would place the issue of humanity beyond the reach of human judges.
When it comes to the fitness of an individual for the Supreme Court, therefore, the key question from a pro-life perspective isn't about church membership, or personal faith and convictions, it is about her understanding of the relationship between the Constitution (which is supposed to reflect and embody the rights of the people) and the Declaration of Independence (which summarizes the moral principles from which we derive our claim to those rights).
Though it is sadly commonplace in our day for people to talk as if morality is irrelevant to law and politics, the U.S. Constitution makes no sense apart from the moral understanding that respects the dignity of the individual, denies the legitimacy of human government based upon mere force and superior power, and requires that laws rest ultimately upon the freely given consent of the governed. Elections, due process, property rights and the need to prevent even benevolent despotism – all these features of the U.S. Constitution reflect certain ideas about right and wrong, certain moral assumptions. If we take these moral foundations seriously, we cannot accept as qualified for the Supreme Court someone who does not understand the meaning and application of these moral principles.
This issue of abortion is by no means the only one that involves these principles. Since the Declaration relies on the concepts of creation and the Creator, our freedom as citizens to acknowledge the Creator is a key constitutional moral principle. Those who embrace the view that we must banish all vestiges of religious belief from our public life deprive the people as a whole of their appeal to the authority of the Creator, the very appeal that encouraged America's founding generation to challenge the tyranny of King George and the English Parliament. Similarly, those who claim that the people cannot appeal to the authority of the Creator when it comes to the moral elements of legislation (e.g., the definition of marriage and the right conduct of sexual relations) destroy the pious regard for His transcendent authority that limits the claims of human authority when it comes to matters of fundamental rights and justice.
In light of these considerations, it is clear that nothing in the public record provides grounds for the conclusion that the Miers nomination deserves the support of pro-life moral conservatives. We are not concerned with her church affiliation or her personal convictions, but with her capacity to understand, articulate and apply the foundational moral principles that make sense of our constitutional arrangements. Other candidates, like Janice Rodgers Brown, have demonstrated such capacity. Though the administration has apparently given some conservative leaders secret information meant to placate their concerns, the simple fact is that such secret information is no proper basis for the judicial confirmation process. The vote of each senator will be a matter of public record, and they must be held publicly accountable for their decision. If key reasons for their decision are hidden from the public, how can people fairly judge whether it made sense?
The Miers pick represents the kind of stealth nomination that moral conservatives distrust deeply in the wake of their experience with David Souter. Beyond this sensitivity, however, lies the more fundamental question of the message this kind of nomination sends to moral conservatives up and down the line. As others have pointed out, we have a pro-life president and a pro-life majority in Congress, yet we are asked to settle for someone who has carefully avoided public identification with the moral principles of the Constitution.
Does this mean that anyone who stands forward to engage in the debate over constitutional principles will be barred from high office, even when putative pro-lifers are in charge? Often when we demand results from Republican politicians we are told that we must work to change America's heart. Now by their actions they tell us that anyone who does so will ultimately come to a dead end in their public usefulness. Did this happen to Ruth Bader-Ginsburg because of her pro-abortion stance? What does it tell us when the ultimate fruit of a strategy is that good people hide their views under the bushel basket, while others are encouraged to hang their bad convictions from the lamp-stand so that they corrupt the whole house?
Christ said, "By their fruits ye shall know them," and such fruit suggests a bad strategy indeed. This does not necessarily mean that Miers will turn out to be another David Souter. Given the likely outcome of this confirmation process, we must pray that she will prove otherwise. Along the way, though, she should be asked the questions that deal with issues of constitutional moral principle, and pressed on them until she gives some evidence of her capacity for dealing with them rightly. This would provide reassurances not now in evidence that her elevation represents a step toward repairing what the federal courts have for decades so earnestly worked to destroy.