Within seconds after the words "Harriet Miers" left the President's lips, conservative blogs and websites and pundits went apoplectic.
Harriet Miers? Why Miers?
Here's the logic behind the howls of protest. There are hundreds of qualified legal scholars out there. They've been in the trenches of the culture war for years, fighting the good fight. Miers' legal career, by contrast, has been solid on process but pedestrian on substance. Is Miers really the best Bush could find? And doesn't the President know that by rewarding a non-participant in the legal discourse he hurts the cause?
Bush's answer was emphatic. She is the most qualified person that he could find to fill the seat.
No one, conservative or liberal, believes this. President Bush doesn't believe this. What the President does believe, but dares not say, is that Harriet Miers is the most qualified conservative, deeply loyal, evangelical woman without a paper trail of disqualifying legal opinion to fill the Sandra Day O'Connor seat.
It's the evangelical qualifier that would get him into the most trouble.
So is Bush looking for an evangelical? Obviously. Why else pick Miers?
There are currently no evangelicals on the Supreme Court. Modern evangelicals often consider themselves evangelicals or born-again, first, and members of a particular denomination, second. In fact, many call themselves non-denominational. By this definition Clarence Thomas would be considered an evangelical Catholic or a devout Catholic. It would be wrong to describe Thomas's religious affiliation as primarily evangelical.
We're not quibbling here. This distinction is important to tens of millions of Americans.
Would Bush actually use a seat on the Supreme Court as a payoff to a key constituency who gave him his re-election? It wouldn't be the first time a President did this. In fact, this is often the case.
Would it work? Just ask Jay Sekulow of the American Center for Law and Justice, a religious legal advocacy group:
This is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court.
Focus on the Family's James Dobson went on Fox News. His views reflect the perceived social status of one of America's most influential constituencies:
There has not been an appointee to the Supreme Court who is an evangelical Christian to my knowledge in decades. It is refreshing that one could even be considered.
You might find such political payoffs reprehensible. America is supposed to be a meritocracy, where your skills are more important than your demographics. Doesn't the promotion of a person because of their religion or race or sex fly in the face of this principle? Why, yes it does!
Politicians, however, often juggle more than one principle at a time. Identity politics has become another powerful force in American politics. It's often referred to as the politics of recognition, and a thoughtful (but ultimately weak) ethic has emerged to support it. It asserts that we can not say that immigrants or illegal immigrants or African-Americans or women or gays or the disabled or Hispanics or Jews or Catholics or the poor or the middle class (the list goes on and on) are being treated justly if they do not have a seat at the decision making table. Here's the meat of the argument. Unless we believe some demographics are genetically inferior to others, a just society would produce individuals across races and sexes who are capable of participating in every level of government and business. What's more, because our Constitution does not allow us to establish a sectarian religion, participants from popular religions would also be represented.
So this same ethic of egalitarianism that promotes equality without regard to race and religion can be used to promote equality that does regard race and religion.
It's why politics gets very messy when it comes to nominating Supreme Court Justices.
Legal analysts spoke like it was a matter-of-fact that a woman should fill O'Connor's seat. A nominee's sex, therefore, has become a relevant demographic. It always has been. O'Connor was the first woman Supreme Court Justice. So one's sex was essential for nomination. Before O'Connor, you had to be male.
Justice Thomas shut down the opposition against his nomination with one comment, that it reminded him of an "old fashioned lynching of an uppity negro". The race card was played over and over again during the Thomas hearings. The now deceased Thurgood Marshall was the first African-American on the court. So one's race has always been essential for nomination. Before Marshall, you had to be white.
The nominations of Justices Ginsburg and Breyer were both lauded because they are Jewish, even though 6.4% of all Supreme Court Justices have been Jewish, compared with 1.8% of the U.S. population. 78% of the Justices have been Protestant, the same percentage as in the U.S. population. Four of the current Justices are Catholic. But evangelicals are largely underrepresented on the Court. The New York Times asserted that Miers, if confirmed, "would be the first evangelical Protestant on the court since the 1930s."
tothesource has spent hours researching the religious affiliations of Justices and we can not find a Justice within the last 100 years that would be considered an evangelical as the word is currently used.
So why not put an evangelical woman on the Court? It's a great idea as long as she's qualified.
tothesource is concerned that competence has been sacrificed with the Miers nomination, though we are speculating based on her lack of judicial writings and curiosity. We hope we are pleasantly surprised during her confirmation hearings, but concern does seem justified. Her judicial philosophy, at the age of 60, remains an unknown quantity except to her closest friends. We are hoping she has made them clear to the President.
tothesource has a suggestion for the President. In the future, to resolve this clash between identity politics and meritocracy, start with competence. We are, after all, talking about the United States Supreme Court! If the field of qualified applicants is large enough and there is an opportunity to also empower the unrepresented then, by all means, do so.
But let's stir the pot even more. Instead of speculating on Miers' qualifications to be a Supreme Court Justice, tothesource would rather ask a more difficult and troubling question regarding her nomination.
Why aren't there more obviously qualified evangelicals out there who can sit on the Supreme Court?
What's the reason for this? It's true that if there is evidence that a nominee is pro-life or has a hard time finding a right to privacy in the Constitution or does not find in the Constitution endless rights for the citizenry that are borne by the state, he or she will have a tough confirmation fight. But not all evangelicals are this socially conservative. Remember Jimmy Carter? Besides, this hasn't kept Catholics off of the court, most of whom are known to be pro-life.
So what's the deal with evangelicals? Have they become so heaven-centric they're no longer any earthly good? Perhaps evangelicals think the law is of no ultimate importance so not worth the effort or the fight or the... This world, after all, is not my home. I'm just a passing through.
Maybe evangelicals no longer think substance matters, caring more that the trains run on time than where they are headed.
No, these answers miss by a mile. Evangelicals across America are deeply involved in social issues. And when it comes to acts of kindness in our country, what demographic outperforms evangelicals?
Here's a horrible thought. Maybe evangelicals have gotten downright lazy, living off of the diminishing shared goods of several generations without concern for their rebuilding and strengthening.
Lazy Puritans? No way! That's an oxymoron.
Another answer is beginning to emerge, a more positive answer and a more accurate answer. Christian Smith (Professor of Sociology at the University of North Carolina) describes in Secular Revolution how the mainline Protestant elite, up to the 1870s, controlled most of America's social institutions including corporations, universities, our courts, and the press. As mainline Protestants grew complacent, squabbling with Catholics and Mormons and Adventists and each other, a secular revolution formed in America's colleges and corporations. This revolution espoused "materialism, naturalism, positivism, and privatization or extinction of religion."
Now here's Smith's key point:
It was also aided by the intellectually thin character of mainstream nineteenth-century Protestantism, which tended to emphasize populist common sense, subjective experience, and mass-based emotional revivalism and so failed to develop a defensible theological approach to knowledge and society that could withstand the attacks of elite challengers in the late nineteenth and early twentieth centuries.
Mainline Protestants have now lost control of America's intellectual and corporate institutions, including our legal system. Smith thinks this is not necessarily a bad thing. It allows for wider participation and a more healthy exchange of ideas. But he also suggests that mainline Protestants and non-denominational Protestants, such as evangelicals and fundamentalists and charismatics, should join in the free exchange of ideas.
There is emerging a new vibrancy in the evangelical world today. It recognizes that culture is built with words (logos) and deeds (ergon). Thankfully, evangelicals believe more and more that if they do not participate in culture building, the culture will build itself away from them. Service-centered ministries, like those we highlighted in our email on the local American church (America's True First Responders), show a vibrant evangelical church that is both compassionate and quick-footed when it comes to good deeds.
Important as they are, let's not stop at good deeds. Let's also encourage evangelicals to join other Christians in the hard work of good words. If it's important to get the deeds right, it's equally important to get the words right.
Certainly tothesource doesn't have to justify the essential importance of words to the people of the Book.
Let's work for the day when there are hundreds of evangelicals eminently qualified to serve on our nation's highest courts.
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