Harriet Miers Makes History -- And Perfect Sense

A lot of the confusion about Harriet Miers evaporates when you look at her nomination through the lens of what makes it historic – the fact that Miers will be the first born-again Christian to sit on the Supreme Court.

(I should qualify that I haven't been able to rule out with metaphysical certitude the possibility that some other Supreme Court justice out there also considered himself born-again. But I turned up not a single reference in fairly thorough Nexis and Google searches. Adherents.com breaks down judicial denominations here with no born-again red flags immediately apparent. And no Supreme Court judges show up on Wikipedia's list of born-again political leaders. I also bounced this question off one TV news outfit’s well-regarded legal analyst, who also couldn’t think of one. If there has been a born-again Christian Supreme Court judge, it would appear that he kept his religious feelings out of his public work, which is precisely the antithesis of the defining characteristic of modern-day born-againism.)

Bush hasn’t used Miers to thread the needle between right and left, she allows him to avoid the needle entirely – because their religious rebirths made it possible for Bush to appoint her based on the one thing no one else can possibly assess: Cardio-meritocracy. Cardio-meritocracy is, as we should know by now, the modern-day phenomenon of assessing someone’s capabilities, competence and integrity not by any empirical metrics of actions and performance, but by somehow (it’s never explained how) attaining intimate knowledge of their metaphorical heart.

Cardio-meritocracy stems from two fallacies that have their roots in religious thinking. The first is the notion that one person can somehow magically “know” another person’s heart in some way divorced from logical, rational assessment of their words and actions. The second is the very premise that individuals even have the thing Bush refers to when he cites their hearts. “Heart” is clearly the politically correct and less obviously arrogant term for what Bush might otherwise refer to as a person’s soul. He’s really referring to personal essence. It’s a flawed notion for several reasons. First, there’s no way for anyone to know whether a person’s actions are at odds with their essence. But more importantly, the very idea that people have an “essence” is a pre-scientific one that has all but faded from modern psychological understanding of how the brain works. There is no “golden nugget,” religious or otherwise, physical or otherwise, that represents the self. There is no immutable, Platonic self suspended in the ether, unchanged over time. There is no discrete “self-ness” section, permanent or otherwise, in any lobe of the brain. “Self,” we are coming to understand, is the ultimately illusory phenomenon that results from the interaction of the brain’s various, atomistic activities. That a president who claims to have been fundamentally transformed can claim there is an untransformable essence should be, on the face of it, laughable.

So Bush is wrong when he suggests that we ought to treat a person’s “heart” as somehow distinct from their actions, he’s wrong to presume that he has the ability to know anyone’s heart and he’s wrong in his belief that such a thing as one’s “heart” even exists. These three cognitive and empirical dominos that make up cardio-meritocracy are set up and tipped over by Bush’s religion – which not only endorses the conceit of a “soul,” but suggests that souls ought to be judged not by works but by faith – and ultimately topple down on us with nominations such as that of Miers.

Bush’s religious beliefs are particularly important to understand because they enable and empower some of his worst instincts. (We're talking now not of theological tenets, but of the cosmologically and epistemologically magical understanding he has of how the world works.) Cardio-meritocracy, for instance, comes with the advantage of cloaking any applicable political calculus or even disingenuousness, while simultaneously painting as heartless cads any critics who might suspect disingenuousness or political calculus. Another example: Bush doesn’t merely have disdain for those whose judgments rely on the application of standards of excellence or analysis of thought, he doesn’t believe in using those methods for anything. How could he? Whenever he’s been judged using those methodologies, he’s always come up wanting. That’s why he jokes about his poor academic record – because his shame about quantifiable failure has transmuted into the denial of its significance. The one thing that does hold meaning – the only thing that holds meaning – is the system of judgment that’s not just opaque, it’s impenetrable, and that’s the judgment of his soul based on his personal relationship with Jesus, which began when he was born again. How could Bush not fully embrace the one system of evaluation that dismisses the rational, logical criteria by which he fails; that renders external criticism and assessment meaningless and in which he’s guaranteed the ultimate level of success simply by asserting that he’s achieved it?

Bush obviously embraces the idea that heart is all that matters. It’s his magical basis for judging Miers and he abides by it so strongly that he actually gets indignant when his critics don’t use it as the magical basis for judging him. In his Q&A Tuesday, look for three things in his discussion of Miers:

The qualities he values in Miers. They're not found in a track record, as tested by either application of her work in the law or by scholarly scrutiny. It’s not the respect of her peers. It’s not any of those things you or I would look to first in assessing any job applicant. Instead, Bush repeatedly refers to her heart, and its metaphorical analogies (I’ve italicized them).

The way he determined whether Miers has the qualities he values. The only things Bush cites to explain how he’s determined whether Miers has the qualities he values are the simple fact of his familiarity with her, and the length and proximity of that familiarity. He gives not a single illustrative anecdote. He quotes not a single thing she has written or said. He cites not a single problem she has solved or legal (i.e., non-career) achievement she can claim. Instead, Bush repeatedly cites solely his unexplained, substance-free knowledge (I’ve bolded the references).

The way others ought to assess his performance in nominating a Supreme Court justice. Bush almost immediately gets impatient when he’s asked to explain, or give details of, his process for selecting Miers. Why? Because to him it’s self-evident and therefore should be to the world. In his mind, he knows Miers’ heart and we know his. Because he applies the transitive property of cardio-meritocracy, he genuinely doesn’t understand why we haven’t already accepted her. When his critics ask for evidence or credentials, he acts as though testimony can replace credentials, as though faith (which he claims will be borne out in time) can be substituted for evidence. (Examples of all these related phenomena are in bolded italics.)

Q Mr. President, of all the people in the United States you had to choose from, is Harriet Miers the most qualified to serve on the Supreme Court?

THE PRESIDENT: Yes. Otherwise I wouldn't have put her on…I've known Harriet for over a decade. I've worked with Harriet. She's a woman of principle and character… And there should be no doubt in anybody's mind…

I know her well enough to be able to say that she's not going to change, that 20 years from now she'll be the same person with the same philosophy that she is today.

Q Some conservatives have said that you did not pick someone like Scalia and Thomas because you shied away from a battle with the Democrats. Is there any truth to that? And are you worried about charges of cronyism?

THE PRESIDENT: Well, I just described to you why I picked Harriet. I'd be glad to go over it again if you like… I picked the best person I could find. People are going to be amazed at her strength of character and her intellect…When it's all said and done, the American people are going to know what I know, though: This woman deserves to be on the bench…

Q The issue of cronyism?

THE PRESIDENT: I just answered, I picked the best person I could find. People know we're close. But you got to understand, because of our closeness, I know the character of the person. It's one thing to say a person can read the law, and that's important -- and understand the law. But what also matters, Adam, is the intangibles. To me, a person's strength of character counts a lot. And as a result of my friendship with Harriet, I know her strength of character…

Q Many conservative women lawyers have expressed their extreme distress that you chose as a woman nominee for the Court someone whose credentials did not come close, in their view, to the credentials of John Roberts. They feel as though it's kind of old-fashioned affirmative action, women don't have the same credentials. I wonder if you could address that.

THE PRESIDENT: Sure, thanks. I would ask them to watch the hearings of Harriet Miers. I think they will become as impressed with her as I have become… And I know her, I know her heart. I know what she believes…And I know exactly the kind of judge she'll be, which is an excellent judge…

Q Following up on that. For ten years you've been on the receiving end of paperwork from Harriet Miers, but the rest of the American people haven't seen either her command of constitutional issues or her philosophy. Will you release some of her, or the bulk of her White House legal work, and not claim executive privilege?

THE PRESIDENT: … I happen to view it as -- as a distraction from whether or not Harriet Miers is capable of answering the questions she's asked. She can -- all the questions they want. It's a distraction from whether or not she will be a good judge…

Q You said a few minutes ago that you're proudly conservative, but there was a lot of hand-wringing when you made your nomination yesterday on Harriet Miers. Bill Kristol said he was "depressed and demoralized," and Rush Limbaugh said it was a "nomination out of weakness." What do you say to these critics, specifically, and how can you convince them that she is as conservative as Justices Scalia and Thomas?

THE PRESIDENT: I guess I'll start over. I hope they're listening…I also remind them that I think it's important to bring somebody from outside the system, the judicial system, somebody that hasn't been on the bench and, therefore, there's not a lot of opinions for people to look at…I don't have to guess and speculate about Harriet. I know her character, I know her strength…

To summarize: Is she qualified? She’s got “principles and character.” Credentials? “Watch the hearings.” Paperwork? “A distraction.” The law is “important” but what also matters “is the intangibles.” (To appreciate fully the absurdity of these answers, imagine giving these replies about yourself at a job interview.)

How can Bush be so sure? He knows her, he’s worked with her, he knows her heart, he knows her character. He knows her so well that he will go on national television and guarantee that this person will not change between now and the year 2025.

And how can we be sure she’s the right choice? Otherwise he wouldn’t have nominated her. There should be no doubt. When the process is over, the entire country, every man, woman and child, will have become imbued with the same knowledge of Harriet Miers that President Bush has.

Call it religion, if you want, but this is the thinking of a man who believes in magic.

Some pundits have speculated that Miers is just another faux social conservative put in place with the real goal of serving corporate ends. But Bush’s methodology is nowhere near what one would expect of his much-vaunted corporate-management-model White House. No sign of tedious reports, statistical studies, cost-benefit analyses, or any of the empirical, real-world methodologies corporate America routinely, sometimes ruthlessly, brings to decisions of even the most intimate, personal consequences for Americans. There’s no sign of it because that’s not what’s behind Bush’s thinking.

And it’s not just that he wants to deny the right and the left the opportunity to evaluate Miers on the bases of philosophical consistency, professional excellence or ideological rigor. He clearly no longer even understands why anyone would. That’s why the pundits split between marveling at how skillfully Bush avoided conflict between the right and the left, and lamenting how poorly Bush did in meeting expectations on both the right and the left.

The most ironic thing about this nomination and its religious component is that Miers’ religion seems to have blinded Bush toward her in much the same way his religion has made it so difficult for his more-secular critics to understand him. Fortified not just by his religious-based certitude but also, no doubt, by her own religiosity, here’s what Bush had to say about Miers in terms of her consistency, which he clearly views as a personal virtue of political value:

I know her well enough to be able to say that she's not going to change, that 20 years from now she'll be the same person with the same philosophy that she is today. She'll have more experience, she'll have been a judge, but, nevertheless, her philosophy won't change…

Q The issue of cronyism?

THE PRESIDENT: … It's important to me -- again, I'll repeat to you, I don't want to put somebody on the bench who is this way today, and changes. That's not what I'm interested in. I'm interested in finding somebody who shares my philosophy today, and will have that same philosophy 20 years from now. And after spending a lot of time thinking about this nomination, there's no doubt in my mind that's -- that's the way Harriet Miers -- there's no doubt in my mind it's the way Chief Justice John Roberts is, as well…

Q Thank you, sir. You said a few minutes ago that you're proudly conservative, but there was a lot of hand-wringing when you made your nomination yesterday on Harriet Miers. Bill Kristol said he was "depressed and demoralized," and Rush Limbaugh said it was a "nomination out of weakness." What do you say to these critics, specifically, and how can you convince them that she is as conservative as Justices Scalia and Thomas?

THE PRESIDENT: … I'm hopeful she'll get confirmed, and then they'll get to read her opinions. And what I believe, and what I know is important, is that she doesn't change over the course of time. And had I thought she would change, I wouldn't put her on there. And I recognize that if you pick somebody from outside the judicial system -- in other words, you pick somebody that's not a judge and they didn't -- hadn't written a lot of opinions -- then people are going to guess, and they're going to speculate. I don't have to guess and speculate about Harriet…

Set aside the fact that politicians and constituents trying to decide now whether to support Miers in the hearings are being told to hold their judgment until after the hearings.

Set aside the question of whether it might not actually be a character flaw for Miers not to change in the face of a dramatic career development that instantly makes her one of the most famous women in America, puts her in intimate, substantive contact with a diverse group of strong-minded, sometimes brilliant jurists and leads to decades of hearing arguments by the nation’s top lawyers and considering issues on which her opinions will have real consequences for the future of the most powerful nation on Earth. Set that aside.

Instead, let’s look at whether there’s any evidence of such consistency in the previous two decades, on the single issue of greatest importance to the single constituency of greatest importance to Bush: Abortion.

When she was young and considered herself pro-choice, Miers had “a born-again, profound experience” that led her to oppose abortion, according to her 1989 campaign manager Lorlee Bartos, who told the Dallas Morning News, “I think Harriet’s belief was pretty strongly felt…I suspect she is of the same cloth as the president.”

By 1980, she had become active with her church, Valley View Christian, which her pastor said is an anti-abortion church and which Miers’ boyfriend, Texas State Supreme Court Justice Nathan Hecht, told the Washington Post distributes anti-abortion literature and screens tapes from Focus on the Family.

Hecht also told the Post Miers has donated “hundreds of thousands of dollars” to the church and that the couple has attended several anti-abortion dinners. In 1989, she donated $150 to Texans for Life.

Also in 1989, she tried to get the American Bar Association to renounce its pro-choice stance in favor of neutrality on the issue.

But…

According to the Los Angeles Times, in 1987 and 1988 she donated $1,000 to the Democratic National Committee, $1,000 to Sen. Lloyd Bentsen (D-Tx) and $1,000 to the president campaign of then-Sen. Al Gore (D-Tn).

The president of Texans for Life, Kyleen Wright told the Boston Globe, “We just don’t know [Miers] in the pro-life, pro-family community in this area.”

And colleagues in the ABA make some interesting observations about her assault on the group’s pro-choice stance. The Dallas Morning News quotes lawyer Darrell Jordan as saying, “Harriet’s position was strictly about the appropriateness of any bar association taking a position on something like that…It had nothing to do with whether she was pro-choice or pro-life. That was irrelevant to the issue.” So what was relevant? According to the Washington Post, “Blake Tartt, a former president of the Texas bar, said Miers believed it was inappropriate for the national association to take any stand on abortion or any other matter of conscience.”

Let me reiterate that last phrase: “abortion or any other matter of conscience.”

The reality is that while being born again may signal one thing to the Christian right, for all we know, Miers could feel exactly the same way millions of born-again Christians and other Americans feel: Abortion is wrong, but it is a personal issue. In some circles, that’s known as being pro-choice.

And to the shock and horror of the Christian right – which has long relied on codewords such as “consistency” and “judicial philosophy” to indicate a supposedly strict, no-right-to-privacy interpretation of the Constitution – if Miers actually does have a smidgen of pro-choice in her, it’s still 100% consistent with being born again. Because the modern brand of born-again Christianity – Bush’s brand – actually doesn’t come with any legal, ideological or even theological litmus test. Jimmy Carter was born again. Bush is pro-death penalty, pro-war and anti-poor people. If that’s the spectrum of born again-ism, Miers can be anywhere on that spectrum and still consider herself genuinely born again, because all that born-again means is that you say you have had a personal experience with something you identify as Jesus.

So, despite President Bush’s assurances about the consistency of her character, there is plenty of evidence – on abortion and other Christian-right hot-button issues – of what the Christian right would call inconsistencies, but much of America would recognize as a fairly typical person’s attempt to navigate and grapple with some issues that pose genuine ethical dilemmas (abortion) and others (such as gay rights) that pose no real ethical dilemma but have yet to clear the thorny hurdle of prevailing social traditions.

While on the Dallas City Council, she opposed repealing a ban on gay sex. But according to the Washington Times, “Miers met with the Lesbian/Gay Coalition of Dallas in the 1980s when running for the city council and impressed one of its activists by saying she favored equal civil rights for homosexuals.” She’s also on record promoting diversity, even as a factor in political redistricting. She’s supported legal clinics for the poor. Doug Kmiec writes in the Washington Post that her “resume is one of hard work and service to corporate clients such as Microsoft and to those too poor to afford a lawyer. Her pro bono commitments in Texas to legal
aid in immigration and civil cases are well known."

But Miers’ meager record does more than just challenge Bush’s prediction of an utterly predictable, unchanging jurist. It also confirms that Miers lacks what the Christian right values most, and that is not mere agreement, but zealous commitment.

Even if Miers does turn out to be anti-choice, anti-gay, anti-everyone, we already know for sure that she does not share the intensity of commitment on those issues that the Christian right demands. Why is this such a crucial point? Because the Christian right wants passion – literally, religious fervor – applied to these issues, not reason. Passion, especially religious passion, precludes discussion, debate and deliberation. If Miers bases her positions on rational contemplation of the real-world facts, competing interests and rival values tied up in these issues she is, by definition, theoretically open to changing her mind. Even worse for the Christian right is the fact that their positions on these core issues often rely on arguments that have nothing to do with logic. In other words, she’s vulnerable.

It would be almost unbearably ironic if Bush had knowingly used the Christian right’s own code words to get their support for a nominee to whom those code words apply only when defined literally. Because we still don’t know whether Miers meets the “secret,” ideological definition. But she might actually turn out to be exactly the kind of judge Bush described, one who restricts herself to interpreting the law, rather than legislating from the bench. And the reason that would be so ironic is that the Christian right doesn’t actually want that (they’ve just used those concepts as semaphore to indicate adherence to certain legal positions) because they understand that if those phrases truly are interpreted literally, they apply to every judge in the country! After all, no matter what interpretation they come up with, every judge cites case law and judicial precedent and claims legal rationales for their rulings. The compounded irony here is that it could be the legal equivalent of the same political bait-and-switch Bush has pulled on us: Voters assumed his religiosity indicated innate goodness and authenticity, when all it really meant was that he felt no need to make his decision-making transparent or open for debate. Likewise, the Christian right has assumed that “being a good judge” translates into overturning privacy-rights precedents and chipping away at decades of civil-rights advances, when all it might really mean is that Bush considers any judge he likes to be, by definition, a good judge.

All of this goes toward explaining not just why Miers split the right, not just why she split the business right from the Christian right, not just why she split the Christian right itself, but why some on the Christian right don’t even know yet where they stand at all.

Who supported her in the 24 hours after her nomination? The Catholic group Priests for Life, for one. Slate reports “there are signs that the social conservatives may be more enthusiastic than the reaction of professional inside-the-Beltway conservatives would lead you to expect. James Dobson, of Focus on the Family, has already moved to support Miers, a faster nod than he gave to Roberts. The evangelical community murmurs that Dobson based his endorsement on those who have known Miers for 25 years at the Valley View Christian Church in Dallas. Her fellow parishioners bore witness to her evangelical faith. Marvin Olasky, a key influence in shaping Bush's faith-based initiatives, reported a similar review of her personal devotion on his blog. The emerging message seems to be: She's one of us and she's with us on abortion.”

In other words, she won the support of Catholics who don’t require evangelical zeal for their anti-choice judges, and she won the support of those on the Christian right who have empirical support for believing Miers to be anti-choice.

Who opposed her?

The militant anti-choice group Operation Rescue found her insufficiently devoted to the cause. And according to the Wall Street Journal, Miers is “more likely to delight” big business than megachurches.

Who remained silent?

Sen. Sam Brownback (R-KS) had nothing to say out of the gate and still hasn't offered a straight up-or-down vote.

Interestingly, Judicial War on Faith commandante Rick Scarborough issued a newsletter e-mail to his subscribers alerting them as follows:

SPECIAL ADVISORY TO FRIENDS AND SUPPORTERS

President Bush has named White House Counsel Harriet Miers, age 60, to be the next associate justice of the United States Supreme Court.

The first woman president of the Texas Bar Association, Miers was a partner of the Texas firm of Locke Liddell & Sapp, and the president's personal attorney in Texas.

Miers has no prior judicial experience.

Stay tuned.
Our analysis and reaction will follow later today.

Rick Scarborough
President
Vision America

No analysis and no reaction followed later that day. And as of this morning, his StopActivistJudges web site has taken no position on Miers other than to post an AP writeup on her nomination. (UPDATE: This morning, he sent his update, which reads in toto: "We are pleased Harriet Miers appears to be a woman of strong Christian faith. However, there is not a track record that her faith has impacted her world view on the great social issues of our day. We are hopeful members of the Senate will treat the hearings as an opportunity to learn the philosophy of Ms. Miers on these matters so important to the future of our nation.")

ABC News reported that “Some religious conservatives signaled they are uneasy,” quoting Family Research Council President Tony Perkins as saying, “We will look at Ms. Miers; there is not a lot of information about her.”

And according to the Dallas Morning News, “state and local Republican leaders peppered the White House with questions during a conference call, raising concerns about a lack of a documented Miers record on abortion and about her overall qualifications for the court.”

In a particularly astute headline, a Wall Street Journal editorial referred to this as a “faith-based nomination.” It is, on several levels. Clearly, Miers’ religion played a role in her relationship with Bush and the nomination that relationship facilitated. But the exaltation of his subconscious that Bush refers to as his faith has also become the only filter through which Bush understands how to see people and issues (the alternative would be to apply rigorous, metrics-based analysis; something he has never done in his life). And, most importantly, thanks to the transitive property of cardio-meritocracy, Bush has now arrived at the point where he expects not just the Senate, not just Republicans, but the entire world to assess decisions that will shape the lives of millions, if not billions of people, for decades based on their faith in his faith in someone else. It’s actually a (faith-based-faith)-based nomination.

Bush has retreated to a point where he’s no longer appealing to his earthly base, he’s now playing solely to the only base that ever really mattered: Himself. The only difference is that now his faith-based constituency has been burned often enough by his poor prediction record that those who back Miers are compelled to cite evidence – and those on the fence seem to be waiting for evidence – that they can trust Bush’s instincts this time. But because Bush has said the proof will come only after the hearings, or after decades of Miers on the bench, now even President Bush’s faith-based backers have to take his decisions the same way the rest of the world has had to for five painful years – on faith.