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For President George W. Bush, choosing a Supreme Court nominee is like threading a needle. The president has to select someone whom his conservative base will trust to deliver the results he’s promised them and whom the intellectuals of the conservative movement believe will advance their theories, but who will not scare the rest of us. Both the nomination of Harriet Miers to the Supreme Court and the administration’s handling of her record on gay rights go a long way to showing that, when push comes to shove, the religious right dictates how the president will slip through the eye of the needle. And that’s bad news for the fair-minded majority in this country, who don’t want to see our basic liberties rolled back. Soon after Miers was nominated, we learned that, as a candidate for the Dallas City Council, in 1989, she had answered a questionnaire from a gay and lesbian group. She indicated that she believed in equal civil rights. Like the news that now-Chief Justice John Roberts Jr. had aided attorneys in the gay rights case of Romer v. Evans (1996), this revelation set off a right-wing outcry. Bush supporters quickly reassured the faithful that Miers’ apparently open-minded gesture was meaningless. Make no mistake; Miers’ answers on that questionnaire were not particularly progressive. She did not favor repealing the state criminal sodomy law. Even Justice Clarence Thomas, who dissented from the majority opinion in Lawrence v. Texas (2003) striking down that sodomy law on constitutional grounds, said he would have voted against it as a legislator. Nor did Miers seek the endorsement of the gay rights group in her bid for a council seat. But as Tony Perkins, president of the Family Research Council, put it, the mere fact of her meeting with the group was cause for concern. So the administration had to do something. And it turned to religion. THE ORIGINALIST MYTH When he first introduced Miers, Bush described her as a “strict constructionist” and an “originalist,” which are code for someone who opposes Roe v. Wade (1973) and Lawrence. The right’s favorite urban legend is that judges in the model of Justices Antonin Scalia and Thomas interpret the Constitution as intended, while Justices Harry Blackmun, Anthony Kennedy, and others have inserted their own views into the judicial process, resulting in victories for “the homosexual agenda” and “abortion on demand.” In his Lawrence dissent, Scalia went so far as to claim that the majority’s result was dictated by their personal belief in the homosexual agenda. Those in the intellectual wing of the conservative movement really believe this originalist myth as it applies to Lawrence (I, and the majority of sitting justices, disagree). And now they want a constitutional sweep of the Court membership, not just another vote toward securing their desired results. With no pedigree in constitutional debate, Miers is a disappointment to them. The administration talked up her work and her so-called “judicial philosophy.” Such a benign-sounding concept as originalism plays better with moderates than an explicit commitment to deny fundamental rights. The administration was banking on the fact that this code language would also be enough to calm the radical right, to whom Bush has promised the end of Roe and, more recently, the end of the gay community’s progress toward civil equality. Then evidence emerged that Miers might, possibly, have a borderline reasonable approach to gay rights, and code language was no longer enough. The extreme right wanted proof that Roe would be reversed and the homosexual agenda stopped in its tracks. TRUST HER FAITH? So the administration dispatched its surrogates — mostly evangelical religious leaders — to make clear that Miers’ evangelical faith is her credential. Her faith (and her loyalty to the president), they assured the religious right, would dictate her votes on abortion and gay issues. In an Oct. 6 conference call run by the Republican National Committee, the surrogates set the record straight. James Dobson of Focus on the Family assured listeners: “I know what church she goes to. I know her faith.” Jay Sekulow of the American Center for Law and Justice pointed out that Miers is “the first evangelical to be nominated since 1931.” And Sara Taylor, the White House director of political affairs, said, “She will make decisions not only based on what is in the Constitution but based on what she believes strongly in.” (That doesn’t sound like “originalism” to me.) The fact of the matter is, Miers’ religious beliefs should not be considered relevant to the question of how she will perform as a justice. The Constitution states that no religious test shall ever be required as a qualification for public office. And I take seriously the idea that this applies in both directions — protecting evangelicals and atheists alike. But the White House apparently disagrees. The Bush surrogates cited Miers’ religion as her primary qualification and as solid proof of how she will vote on hot-button social issues. They implied that a Supreme Court nominee should not be expected to separate her religion from the law and that if you know a nominee’s faith, you know her constitutional reasoning. It’s an offense to our Court, an offense to the millions of religious people who respect the separation of church and state, and an offense to religion itself, which should not be an “ace in the hole” in political gamesmanship. It also contradicts administration officials’ statements that they prefer originalists because originalists have no agenda except the Constitution, and it completely undercuts the administration’s charges that pro-gay and pro-abortion rights decisions are wrong because they supposedly spring from personal preferences. What we heard on the RNC phone conference was the opposite, a promise that a combination of evangelical belief and loyalty to the president will dictate how Miers votes. And that promise — not the substance of Miers’ faith — is what troubles Americans who want to preserve an independent Court. THIS IS THE MESSAGE Disheartening as it was, the conference call injected a degree of honesty into the debate over our judiciary, and honesty is good. So let’s be thoroughly honest and clear in response. First, when Dobson, Sekulow, and others complain that judges are “legislating from the bench,” what they really mean is that the judges aren’t legislating from the Bible. And not just any Bible — their Bible. Second, gay rights are the real unspoken issue in this nomination. Miers has a paper trail — albeit a modest one — of anti-abortion activities. The administration trotted out her religious credentials to address that other thing: the question of how she will rule about my rights, and about people like me and the community I represent. And third, there will be no call to the gay, lesbian, bisexual, and transgender community to reassure us about Miers’ judicial philosophy, her heart, or her credentials. While Dobson claims to have confidential information that reassures him about Miers’ worthiness to serve, neither I nor anyone like me will be favored with such insight. I still don’t know much about Harriet Miers. Like everyone in the country except James Dobson and George Bush, I’m waiting for answers. But I do know that whatever the merits of her constitutional philosophy, the credential that will win over the president’s base is the strength of her religious faith. And that, it seems to me, was not the original intent of our Founders.
Joe Solmonese is the president of the Human Rights Campaign, the country’s largest gay, lesbian, bisexual, and transgender civil rights organization.

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