By JOE FEUERHERD
Washington

In selling Supreme Court nominee Harriet Miers to the public, and to the 100 senators who will decide whether she joins the high court, the administration of the nation’s first MBA president is offering a case study in confused marketing, and religion is at the core of the botched effort.

It’s not simply a case of mixed messages, but a 180-degree flip-flop from the not-so-distant days when the administration and its supporters argued that any consideration of a judicial nominee’s religious affiliation was out of bounds. Today, facing growing opposition to the Miers nomination from its conservative base, White House operatives fill in the blanks of Miers’ résumé with a none-too-subtle sectarian appeal: She’s one of us. Republican National Committee “Catholic Outreach” chair Leonard Leo, for example, told participants on an Oct. 6 White House conference call to grass-roots activists that Miers is a devout Christian, while Jay Sekulow, chief counsel of the conservative American Center for Law and Justice, noted that she would be the first evangelical on the court since the 1930s.

Prior to the formal announcement of Miers’ nomination, Focus on the Family chairman James Dobson, an influential figure on the religious right, received private assurances from top White House aides that Miers attended a conservative evangelical church whose membership was overwhelmingly pro-life. Dobson endorsed the Miers nomination.

Then, on Oct. 12, President Bush abandoned any pretense that religion was out-of-bounds. “People ask me why I picked Harriet Miers,” Bush told reporters. “They want to know Harriet Miers’ background, they want to know as much as they possibility can before they form opinions. And part of Harriet Miers’ life is her religion.”

The use of religion is a tactic that enrages some conservatives who believed the pre-Miers party line that religion should not matter in judicial appointments. “We’re really surprised and disappointed that they led with this bizarre approach to kick-off a nomination,” says Joseph Cella, president of Fidelis, a conservative organization committed to removing discussion of a nominee’s personal faith from the judicial approval process. The president’s endorsement, Cella told NCR, has “derailed an elevated conversation” about the judiciary and the role of religion “that should have and could have happened.”

“It is both troubling and hypocritical for the supporters of Harriet Miers to promote her strong evangelical faith to garner support among religious conservatives,” said the Rev. Patrick Mahoney, director of the Christian Defense Coalition. “You cannot have it both ways. Groups and leaders cannot say religion is off-limits during the confirmation hearings for new Supreme Court Chief Justice John Roberts’ confirmation and then promote religion during the Miers confirmation for the sole purpose of political gain.”

It wasn’t supposed to be this way.

Early in the Bush administration, a carefully calibrated strategy related to judicial appointments was implemented. The president would nominate judges who would not “legislate from the bench” and would respect “the rule of law.” Any discussion of a nominee’s “deeply held beliefs” -- seen by conservatives as code designed to ferret out a nominee’s view of Roe v. Wade -- was deemed an unconstitutional religious test and, in some cases, an example of anti-Catholic bigotry.

In the Senate, conservatives Jeff Sessions, R-Ala., and Orrin Hatch, R-Utah, took up the case. Democrats opposed to the nomination of antiabortion Catholic William Pryor to the federal bench were signaling that nominees with conservative religious beliefs were unacceptable candidates for the court, Sessions and Hatch charged at the 2003 hearings.

Outside pressure was applied: The conservative Committee for Justice, headed by C. Boyden Gray, White House counsel for Bush’s father, and the Ave Maria List (predecessor to Fidelis) sponsored newspaper ads that showed a door labeled “Judicial Chambers” covered by a sign reading “Catholics need not apply.” Said the ads: “Some in the Senate are attacking Bill Pryor for having ‘deeply held’ Catholic beliefs to prevent him from becoming a federal judge.”

A vote on Pryor’s nomination was filibustered by Democrats, but the charges of anti-Catholicism clearly rankled. Vermont Democrat Patrick Leahy, a Catholic, labeled the ads “religious smears.” (Pryor, as part of the compromise that allowed for votes on Bush judicial nominees, was approved by the Senate earlier this year.)

Fidelis took up the case with the nomination of John Roberts, a Catholic. The Senate Judiciary hearings on Roberts’ nomination are “ripe for antireligious bigotry,” Cella warned prior to the hearings. The “anti-Catholic bigotry [of three prominent Senate Democrats] is carefully cloaked by questioning Judge Roberts’ ‘personal views’ and hypothetical questions involving his religious faith, which he holds dearly,” said Cella.

“Religion, politics and ideology have no place or bearing in the confirmation hearings because these issues are not pertinent to the role of a judge,” Cella said.

By acknowledging the legitimacy of questions related to religion, said Cella, the administration has put Miers in a position of “facing some unfortunate grilling.”

Patrick Brennan, holder of the John F. Scarpa Chair in Catholic Legal Studies and professor of law at Villanova University, agrees. “Playing the faith card was the wrong move,” says Brennan. “You can’t invoke faith and then leave its contents utterly opaque.”

Finding the line that separates tough questions designed to elicit a sense of Miers’ personal convictions while not offending constitutional prohibitions on a religious test for office is the job of the Senate Judiciary Committee, which will take up the Miers nomination early next month. Part of the difficulty, agree legal scholars, is that the politically charged atmosphere of a Supreme Court hearing doesn’t lend itself to thoughtful consideration of the role religion plays in shaping a nominee’s views.

“It’s difficult for someone in that circumstance to give a highly nuanced answer,” says Thomas Berg, codirector of the Terrence J. Murphy Institute for Catholic Thought, Law and Public Policy at the University of St. Thomas in Minneapolis.

“One of the unfortunate parts of the dialogue is that it is dominated by litmus tests and slogans, so an intelligent discussion of how the judicial role is played out” is nearly impossible, said Brennan. Questions about religion, said Brennan, are fair game, “so long as they are designed to elicit a candid response about the interaction between personal and political views” and the role of a judge, and are not used as a covert religious test for office.

The debate over whether a nominee’s “deeply held beliefs” are fair game in the nominating process will continue. But all sides now seem to agree on one thing: Because Supreme Court nominees now routinely refuse to answer probing questions before the Senate Judiciary Committee, religion -- like political contributions, professional and personal organizational memberships, even a spouse’s partisan or ideological activities -- is viewed as one of many signs senators read in determining whether a high court candidate might share their views on controversial issues.

Joe Feuerherd is NCR Washington correspondent. His e-mail address is jfeuerherd@natcath.org.

National Catholic Reporter, October 28, 2005