Before Alfred E. Smith, the popular governor of New York, was nominated for President in 1928 his defeat some months later was almost a forgone conclusion. He was a Roman Catholic. By 1960 Americans felt differently, though the election that year was a real squeaker. In fact, Jack Kennedy would never have made it to the White House had he not convinced the public that the Pope would not dictate his decisions much less would his personal faith. In these days of hyped religiosity these old concerns may seem quaint. In fact, it would probably be more difficult for an avowed atheist or even agnostic to be elected than someone overtly devout. Neither a Thomas Paine nor a Thomas Jefferson would likely make it out of the starting gate.
I for one find all this mixing of politics and religion these days a most disturbing phenomenon. I left the rabbinate in the late 1960s in part because I thought politics (which I was considering entering at the time) and religion didn’t mix. The idea that either executive or legislative decisions are made based upon the religious convictions of any one or even group of public officials runs contrary to the idea of a pluralistic society and a secular state bound by a “wall of separation”. At the same time, we have a very powerful tool for keeping excess in check – the ballot box. I may not like George Bush's or other social conservative’s opposition to Choice or their attempt to intervene in the Terry Schiavo case, but their power is defined by a relatively short term two to six years. They can be voted out of office (or in the President’s case be subject to term limits).
The same cannot be said of the federal courts and specifically the Supreme Court. There religion matters because appointments are for a life. This is not to suggest that people with strong religious beliefs should be disqualified from service, no matter what that religion may be. But when an individual's faith, which by definition is unlikely to represent a universal point of view, impacts specific decision making it constitutes a real problem. We know very little about Harriet Miers but two things that have emerged in the last days are troubling. The first is that, as part of her mid-life embrace of Christ as interpreted by the Evangelical Valley View Christian Church, she specifically opted for active involvement in its anti-abortion mission. Since she is purported not to do things lightly, that’s significant. The second, is that Mr. Bush, one of the few people who claim to really know her, has characterized Ms. Miers as someone who doesn’t change her mind. Wow. Does that mean that she isn’t a person who grows, who can reconsider something when faced with new information or, most importantly, whose born-again faith might color her decisions? If the court should decide that the right of choice is not guaranteed by a religiously neutral reading of the constitution that would be very disturbing. If that decision were made because this possible Justice thought it contrary to her concept of God and the mandates of her particular faith it would be frightening.
Perhaps the appointment of Harriet Miers is the moment when this critical issue will finally come to a head. The conerned rumblings of doctrinaire conservatives in the last few days, unless they are actually a smoke screen aimed to tricking moderates into voting for her, could be the catalyst for such a discussion. We’ll have to see, but if you don’t think religion matters when it comes to the Court, you might want to consider changing your mind even if Ms. Miers never does.