Supreme Court Nominee Miers

Sanford Levinson SLevinson at
Wed Oct 12 19:18:56 PDT 2005

An excellent question.  If Bush is entitled to choose nominees because
of their religion, then why aren't others entitled to oppose the
nominees because of the self-same religious commitments?  Isn't Bush
opening a true Pandora's box?  (Or should we simply praise him for his
candor, since no one would believe his denial that her religious
commitments were a contributing factor to her being chosen?)


From: Zietlow, Rebecca E. [mailto:RZietlo at UTNet.UToledo.Edu] 
Sent: Wednesday, October 12, 2005 10:05 PM
To: Sanford Levinson; conlawprof at
Subject: RE: Supreme Court Nominee Miers

Related to Sandy's post (and notwithstanding McLellan's remarks), I note
that Bush today hinted that Miers religion was in fact one of the
reasons why he chose her.  Bush said "People are interested in why I
chose Harriet Miers . . . part of Harriet Miers' life is her religion."
This remark strongly implies that Bush was looking for a religious
candidate for the position of SCT Justice, apparently in violation of
Article VI ("no religious test shall ever be required as a qualification
to any Office.")  I am interested in whether others agree, and if so,
what, if anything is the remedy for the President's apparently
unconstitutional conduct.  It seems clear that the religious
qualifications clause would not be judicially enforceable in this
context (I can't think of anyone who would have standing, and any court
would probably find it to be a political question).  Should Senators
voting on the Miers nomination enforce the Clause by voting against her
nomination (and explaining he reason for their vote)?  What do others
Rebecca Zietlow


From: conlawprof-bounces at on behalf of Sanford Levinson
Sent: Wed 10/12/2005 9:43 PM
To: conlawprof at
Subject: RE: Supreme Court Nominee Miers

 From tomorrow's NYTimes:
  "Harriet Miers is a person of faith," Mr. McClellan replied. "She
recognizes, however, that a person's religion or personal views have no
role when it comes to making decisions as a judge."  
Is it imaginable that Mr. McClellan's boss (or Karl Rove) could possibly
believe this?  If so, then why did Rove emphasize to Dobson her
membership in a conservative Evangelical church?  Is Dobson supposed to
be someone committed to identity politics who will be delighted with the
appointment of a conservative Evangelical (perhaps as a "role model")
even if that person has, e.g., a strong commitment to precedent that
views Roe as simply "settled law," etc.,  Is not Mr. McClellan (not for
this first time) simply insulting the intelligence of every American, on
all sides of the political divide?  Or does one place some special
meaning on the definition of "no role" (e.g., one doesn't affirmatively
cite religious materials in judicial opinions)?
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