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The Difference Between Wrong and Rotten: Now is the Time to Subscribe to National Review

Thursday, October 13, 2005  |  posted by Hugh Hewitt

An e-mail from a Miers’ defender:

Although I was initially disappointed over the Harriet Miers nomination, now I am firmly planted in her corner. I support her because the substance of the anti-Miers criticism is based on her lack of elite credentials.

A lot of conservative apologists are demonstrating their fealty to the Harvard-Yale establishment, more than to the conservative cause.

You know very few elitists voted for GWB and he owes them nothing. He got elected in-spite of his H-Y connections, not because of them.

It’s a shame, because I subscribe to NR and liked their writers. But I will not be renewing my subscription now.

Although I would have preferred a Californian like JRB. I am solidly in support of HM.

Stand firm brother,


With appreciation for his support, I replied to JR__ that he should absolutely renew his subscription to National Review. In fact, now is the best time to subscribe if you are pro-Miers. (Plus you get four free issues because of the 50th Anniversary.)

Conservatives are deeply split, though the pro-Miers camp is gaining, and the steadiness of the president assures her eventual confirmation. (See this morning’s from R. Emmett Tyrrell). But it is an important debate among friends, not an occasion for the sort of vows of eternal enmity that mark the left in its melt-downs.

The anti-Miers caucus is headquartered at NRO, but these are remarkably talented and honorable conservatives, not destroyers of the Republic. Some of their rhetoric was over the top, but that’s why we call it rhetoric. When I tease them about being a part of the Bos-Wash Axis of Elitism, it is just that teasing, not a call for their banishment. (Well, Peter Robinson…)

There’s a big difference between wrong and rotten. David Frum is wrong. Bill Mahr is rotten. K-Lo and Mark Levin are wrong. The DailyKos gang is rotten.

Here’s the good news: The left is riding over the hill to attack Miers on the basis of her religion and the president’s appreciation of it. Now we can all get along, right?

Article VI, clause 3 says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Duke University Law School Professor and ConLaw icon of the left Erwin Chemerinsky explains that this clause “did ensure that government could not establish a religion as a condition for holding federal office or infringe on free exercise of religion for these individuals.” He continued:

This provision was applied to the states in Torcaso v. Watkins in 1961. Torcaso involved a challenge to Maryland’s refusal to allow a man to be a notary public because he would not declare his belief in God. The Court stressed that the Constitution’s framers sought “to put people securely beyond the reach of religious test oaths.” The Court declared: “We repeat and again reaffirm that neither a State nor the Federal Government can constitiutionally force a person to ‘profess a belief or a disbelief in any religion.’…Thus Maryland’s religious test for public office unconstitutionally invades the appellant’s freedom of belief and religion and therefore cannot be enforced against him..”

It is also inconsistent with the philosophy under this provision for the government to exclude clergy members from holding government offices.

Now the left is attempting to sell the absurd idea that viewing religious belief as a positive indication of character is a prohibited religious test. From the Los Angeles Times this morning:

“We were told we weren’t even allowed to bring up the topic of religion when John G. Roberts was nominated for the Supreme Court,” the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said in a statement. “Anyone who did was quickly labeled a bigot. Now Bush and Rove are touting where Miers goes to church and using that as a selling point. The hypocrisy is staggering.”

Ralph G. Neas, president of the liberal group People for the American Way, cited Article 6 of the Constitution, which states that “no religious test shall ever be required as a qualification to any office or public trust.”

“The president and his people are using repeated assurances about Miers’ religion to send not-so-subtle messages about how she might rule on the court on issues important to the president’s political supporters,” Neas said. “It’s a shabby ploy unworthy of the debate over a lifetime appointment to the Supreme Court.”

The idea that there is inconsitency in preventing attacks on a nominee because of his or her religious beliefs and praising and finding value in a person’s commitment to religious beliefs is not merely absurd, it is transparently a stupid argument, and one that newspapers must report as such. Bush’s appreciation of Miers religious convictions as a “part” of her character and thus her qualification for office is simply not a religious test, whereas refusing Catholic nominees confirmation for fear their “deeply held beliefs” will inhibit their judging is.

Now, go subscribe to National Review. And then drop them an e-mail on the need to rethink their opposition.

UPDATE: Andrew Sullivan professes not to understand how Bush’s favorable remarks about Harriet Miers religious beliefs are not remotely like a violation of the Tests clause, or how refusing to vote to confirm someone because of their Cathlic religion would be such a violation. Which is a good reason to put some distance between yourself and Andrew’s other ConLaw analyses, because it isn’t that hard.

BTW: Despite Andrews assertion, I have no objection to any originalist being seated on SCOTUS, no matter what religion they hold –or no religion at all. I strongly object, as did the Framers, to refusing office because of religious belief.

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