David Limbaugh

I hate it when I am sympathetic to arguments on both sides of an issue as it threatens my image as a benevolently close-minded, dogmatic, doctrinaire ideologue. But I do think conservatives are talking past one another on the Miers nomination and that a rift is growing between some conservatives and the White House. So here are a few more observations concerning the ongoing Miers saga.

Conservative critics of the nomination might need to be clearer about the applicability of their objections. There is a difference between criticizing the president's pick and actually advocating Senate rejection of Miers' nomination.

It is perfectly legitimate (and healthy) for conservatives to register their disapproval of the president's selection. They (we) can bellow against it to their heart's content. But they best not advocate that the Senate reject Miers just because they believe she may not be the most qualified for the position. If she is qualified and of good character, the Senate must, as a matter of constitutional law, defer to the president's prerogative and confirm.

Accordingly, conservatives, unless they truly believe Miers to be unqualified, should specify that their objections are directed at the president and not the Senate, lest they run the risk of lending legitimacy to the liberal practice of rejecting nominees for extra-constitutional (including political) reasons.

Nor do senators of a president's party have an exemption from their duty under the Advice and Consent clause to affirm an honorable, qualified nominee. If they ignore this and vote not to confirm a qualified nominee, they will be as guilty as Democrat senators of usurping the president's appointment power.

As to the brouhaha over religion, I believe President Bush has come under unfair criticism over his remark -- in response to a media question -- that Miers' religious background is a factor in her favor. He has a right to use any criteria he wants in making his selection. He happens to be an evangelical Christian, and there is nothing wrong with him considering Miers' Christianity a plus.

Some have suggested he is applying a religious litmus test. Nonsense. At no time did he suggest that Christianity is a prerequisite to a nominee's fitness, just that it was one positive factor in his decision.

Others -- including some conservatives and some liberals, for different reasons -- say that a nominee's faith should not inform his or her jurisprudence. Many secular liberals, for their part, have this pathetically misguided notion that government officials even in the political branches of government should not permit their Christian worldview to inform their policy decisions.

Since they deem the judiciary a political branch as well, they also consider it improper for judges to allow their Christianity to play a role. The liberals' objection here has nothing to do with judicial activism or with government officials of any branch being influenced by their respective worldview. Their objection goes exclusively to the Christian worldview. They are as pleased as pagans if judges become jurisprudential slaves to their secular humanist worldview.

But by raising the religion issue, these liberal objectors seek to fan the flames of paranoia over church-state interaction to the detriment of the nominee. To the extremists among them -- far more than you might imagine -- strong Christians shouldn't be on the Court because they can't decide cases uncolored by their religious "superstition." You wait; Miers' Christianity will become a strong point of contention among libs before this battle is over.

But the principle objection among those conservatives bothered by President Bush's comments about Miers' Christianity -- I'm not one of them -- concerns constitutional interpretation. They believe that judges, especially Supreme Court justices, should be guided by the Constitution alone, not their religious convictions. Thus, Roe v. Wade should be reversed not because abortion is a moral abomination, but because it is bad law -- period.

I agree with that, but I don't think President Bush meant to imply otherwise. I don't think he intended to send code to the religious right when invoking Miers' Christianity in response to a reporter, other than possibly to imply that most strong evangelical Christians are likely to believe in judicial restraint. I think he was also saying that Ms. Miers is a good Christian lady, which reflects well on her character. I suspect Karl Rove was making the same points to Dr. James Dobson in their conversation.

I should also add the postscript, based on my e-mail inbox alone, that Christian conservatives are far from monolithic on Miers. Some, to be sure, believe that Miers' strong evangelical beliefs virtually guarantee she'll be a constitutionalist. Others realize that some self-professed evangelicals are theological and political liberals and proponents of liberal judicial activism.

I am all for the robust intra-conservative debate, but I think both sides should tone down the personal attacks and be less anxious to jump to conclusions impugning the other side's or the president's motives. And perhaps all of us, myself included, should strive to retain an open mind until the confirmation hearings.


David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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