Supreme Court Litmus Test and Hipocracy

President Bush called attention to Harriet Miers’s religion in order to "patch a growing fissure" amongst conservatives over his Supreme Court nominee. "People are interested to know why I picked Harriet Miers," he said. "Part of Harriet Miers’s life is her religion." President Bush shouldn’t exploit Harriet Miers’s faith to rally support for her nomination. As the conservative Weekly Standard writes, "what people most need to know about Miers is how she thinks about the law and the role of the courts — a question not easy to answer given the nature of her legal career and the brevity of her encounters with federal constitutional law." 

Bush has repeatedly said there would be no "litmus test" for his nominee. When Sen. Dick Durbin (D-IL) asked Chief Justice John Roberts whether his religious devotion would impede his ability to follow the rule of law, "[c]onservatives accused Mr. Durbin — who is Catholic — of having a religious ‘litmus test’ under which he would oppose any nominee to the high court who is Catholic and follows the church’s teaching on abortion." But Bush’s comments yesterday indicate religious devotion may be a precondition for the selection of a judicial nominee. Even the conservative editor of the National Review, Rich Lowry, has noted that Bush’s allusions to religion "display a touching faith in the power of hypocrisy, double standards, and contradictions to see his nominee through." Sen. John Cornyn (R-TX) said during Roberts’s confirmation, "We have no religious test for public office in this country." Roberts himself claimed, "My faith and my religious beliefs do not play a role." As conservative writer Andrew Sullivan has noted, Justice Sandra Day O’Connor wrote in one of her opinions, "the separation of church and state as guaranteed in the Constitution "is infringed when the government makes adherence to religion relevant to a person’s standing in the political community."