FRUM: A SINKING NOMINATION

There has not been a moment since October 3 when I have not felt sick and sad about this Miers battle, but today may have been the worst day yet. This morning, the president mobilized Laura Bush to join him on national television and accuse critics of the Miers nomination of "sexism." Reading the transcript of the interview, you can feel this kind and gracious woman's disinclination to speak an untruth. "It's possible," she says. "I think it's possible."

What a terrible and false position to put the first lady in! And what a sign that the White House has finally understood that it has lost the argument over this nomination.

By asking the first lady to defend the nomination, the White House is implicitly admitting that the president's word alone has failed to carry the day: That, in other words, when he said, "Trust me," conservatives said "No." The first lady's appearance was a dangerous confession of personal and political weakness by the president - one that will be noticed and exploited by the president's Democratic opponents.

Even more ominously, the Today show interview announces a new strategy of trying to win the Miers nomination by waging war on the president's core supporters. In the first week of the battle, the White House sent out James Dobson to woo evangelical conservatives. That didn't work out too well. So now the White House has switched strategies. It has turned its back on conservative evangelicals and is instead using Laura Bush to woo suburban moderates. But remember: Laura Bush is on record as a supporter - not just of abortion rights - but of the Roe v. Wade decision. Interviewed on the Today program in January 2001, Mrs. Bush was asked point blank about the case. Her answer: "No, I don't think it should be overturned." Is it credible that Mrs. Bush would be endorsing Harriet Miers if the first lady thought that Miers would really do what James Dobson thinks she'll do?

It is madness for a 37% president to declare war on his strongest supporters, but that is exactly the strategy that this unwise nomination has forced upon President Bush. And every day that passes, he will get angrier, the attacks will get fiercer - and his political position will weaken.

That is why it is wrong and dangerous for Republicans to say, "Let's wait for the hearings." Even if the hearings start in the next couple of weeks, as the White House now says it wishes, the Miers matter will extend itself at least into November. That's a month and more of the president's team accusing the president's supporters of sexism, elitism, and who knows what else; a month of rising tension between this president and the conservatives who elected him; a month in which the president's poll numbers will drop even further. The longer it continues, the costlier this battle will prove for the president. And if forced to its ultimate conclusion, the odds are rising that this is a battle that will end in ultimate defeat for Miers and for Bush.

Under these circumstancs, the least bad solution is for the president to withdraw this nomination now, before he does himself further and growing harm.

Many readers have asked what they can do to help achieve a good resolution of this crisis.

First, please send an email to Rush Limbaugh and Laura Ingraham thanking them for their brave stance against this nomination. These two broadcasters have been tireless and fearless on this story - but they are under intense and increasing pressure, and it makes a huge difference to them to know that their work is heard and supported. (And let me add: It has made a huge difference to me as well.)

Next, communicate with the Republican Senators on the Judiciary committee. Lindsey Graham has already committed himself to the nominee, but the others have not - and Brownback in particular seems to be leaning negative. It will again make a huge difference to these senators to know that conservatives across America will support them if they stand up to White House pleasure.

Finally, some friends and I have drafted a petition to the president that we will shortly be putting on a webpage for all who wish to sign. Here's the draft text:

"WE ARE REPUBLICANS AND CONSERVATIVES who supported the election of George W. Bush in 2000 and 2004. Today, we respectfully urge that the nomination of Harriet Miers to the United States Supreme Court be withdrawn.

"The next justice of the Supreme Court should be a person of clear, consistent, and unashamed conservative philosophy.

"The next justice should be seen by all as an independent custodian of the constitution, untainted by any hint of secret pledges or political obligations.

"The next justice should be a person of the highest standard of intellectual and juridical excellence.

"For all Harriet Miers' many fine qualities and genuine achievements, we the undersigned believe that she is not that person. An attempt to push her nomination through the Senate will only split the Republican party, damage the Bush presidency, and cast doubts upon the Court itself.

"Sometimes Americans elect Republican presidents, sometimes we elect Democratic presidents. Whatever the differences between the parties, surely we can at least agree on this: Each party owes America its best. President Bush has a wide range of truly outstanding conservative jurists from which to choose. We believe that on second thought he can do better - for the Supreme Court, for conservatism, for America."

Comments on this draft text are welcome, but PLEASE do not yet send signatures. When the site is ready to take and forward your message to the White House, I'll post a note and link here at NRO. Don't worry, we'll act fast.

Republic, in my last post to you I recommended you read Joseph Story's 1833 Commentaries On The Constitution for insight on the original intent of our founders on religion. On further reflection I realized if would be a monumental task to isolate his commentary on religion from the remainder. Further, the opinion of other founders and past Supreme Court decisions are not mentioned. So the following are some excerpts on the subject:

In Runkel vs. Winemiller of 1796, the Supreme Court stated: "By our form of government, the Christian religion is the established religion, and the sects and denominations of Christians are placed upon the same equal footing."

Note the 1796 decision was a mere 9 years after the Constituion was adopted, and should be given heavy weight in the area of 'Original Intent'.

In People vs. Ruggles of 1811, the Supreme Court Stated: "Whatever strikes at the root of Christianity tends to manifestly to the dissolution of civil government."

It doesn't get much clearer than that. If you attempt to destroy Christianity from our society you are an anarchist.

In his 1833 "Commentaries on the Constitution", Supreme Court Justice Joseph Story wrote:

"The real object of the [first] amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. . . ."

"The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; these never can be a matter of indifference in any well ordered community . . ."

"Now, there will probably be found few persons in this, or any other Christian country, who would deliberately contend, that it was unreasonable, or unjust to foster and encourage the Christian religion generally, as a matter of sound policy, as well as of revealed truth. In fact, every American colony, from its foundation down to the revolution, . . . did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty."

"Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. . . "

Now you see why Story was so respected in the legal circles, until the disease of the ACLU infected our society.

In Vidal vs. Girard of 1844, in a case involving a school in Philadelphia that wanted to try and teach morality without religious principals, the Supreme Court stated: "Why not the Bible, and especially the New Testament be read and taught as a divine revelation in the schools? Where can the purest principals of morality be learned so clearly or so perfectly as from the New Testament?"

In 1853 a group filed a suit that actually wanted "Separation of Church and State". The Case never made it to the Supreme Court.

On March 27, 1854 The House Judiciary Committee Stated: "Had the people during the revolution had any suspicion of any attempt to war against Christianity, the revolution would have been strangled in its cradle . . . At the time of the adoption of the constitution and the amendments, the universal sentiment was the Christianity should be encouraged, but not any one sect . . . In this age, there can be no substitute for Christianity. That was the religion of the founders of the Republic and they expected it to remain the religion of their descendants."

In Reynolds vs. United States of 1878, the Supreme Court wrote, "The great vital and conservative element of our system is the belief of our people in the pure doctrines and the divine truths of the Gospel of Jesus Christ."

Note that in this case the Supreme Court used Thomas Jefferson’s 1802 letter to the Danbury Baptist Association, which contained the infamous 'Separation of Church and State' clause, in its entirety. The letter, including the 'Separation of Church and State' clause, was used to ensure Christian principals were kept in government! Wow!

In Church of the Holy Trinity vs. United States of 1892, the Supreme Court ruled unanimously that, "this is a religious people. This is a Christian nation", adding, "Our laws and our institutions must necessarily be based upon and embody the teachings of the redeemer of mankind. It is impossible for it to be otherwise; in this sense and to the extent our civilization and our institutions are emphatically Christian."

Note the court took 10 years to make its decision. After researching mountains of evidence, the court went on to quote 87 historical precedents to support its findings (stating that there were more, but 87 should be sufficient).

In Everson vs. Board of Education of 1947, the Supreme Court used only one statement from Jefferson’s letter: "American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and State."

That was the first time in the history of American jurisprudence that the term, "wall of separation of church and state" was used in this context. The term was part of a prior, personal opinion written by an ACLU lawyer, Leo Pfeffer. Pfeffer placed his opinion on the desk of the very liberal judge, Hugo Black (a former KKK member), and Black rammed it through to get a 5-4 decision.

So, in the span of about 70 years, from Reynolds vs. United States of 1878, to Everson vs. Board of Education of 1947, the Supreme Court went from using Jefferson's 1802 letter to the Danbury Baptist Association as a basis to ensure Christian principals were kept in government, to the basis to eliminate Christian principles from government.

Prooving that "nothing is so absurd that if you repeat it enough, people will believe it."

To show you how this matter has been turned around backwards, I quote this from another source:

When a little boy in the fifth grade was reading his Bible at recess, a teacher grabbed him by the ear and hauled him into the principal's office. The principal took the Bible and threw in into the waste basket, and said, "You are violating the principle of separation of church and state". But, if she had instead quoted the First Amendment, which says,"Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof", then little Johnny could have said, "But Principal, in case you haven't noticed, I am not the Congress, and I was freely exercising my religion".

Back to Jefferson. Did Jefferson mean by the phrase "separation of church and state" what we are led to believe today? Absolutely not. It is totally opposite of what he believed.

While Jefferson was President of the United States, he also served as the chairman of the committee on education for the public schools in Washington, D.C. He demanded that two books MUST be taught in D.C. public schools: the Bible and Watts Hymnal.

Did you know that two days after Jefferson sent that letter to Danbury he attended public worship services in the U. S. Capital building? Did you know that he authorized the use of the War Office and Treasury building for church services? That he provided, at the government's expense, Christian missionaries to the Indians? That he put chaplains on the government payroll? That he provided for the punishment of irreverent soldiers. That he sent Congress an Indian treaty that provided funding for a priest's salary and for the construction of a church for the missionaries to the Indians so the Indians might be won to the Gospel of Jesus Christ and, thereby, civilized?

In 1822, four years before his death, Jefferson wrote, "In our village of Charlottesville, there is a good degree of religion, with a small spice only of fanaticism. We have four sects, but without either church or meeting-house. The court-house is the common temple, one Sunday in the month to each. Here, Episcopalian and Presbyterian, Methodist and Baptist, meet together, join in hymning their Maker, listen with attention and devotion to each others' preachers, and all mix in society with perfect harmony."

Also in 1822, he wrote, "In our annual report to the legislature, after stating the constitutional reasons against a public establishment of any religious instruction, we suggest the expediency of encouraging the different religious sects to establish, each for itself, a professorship of their own tenets, on the confines of the university, so near as that their students may attend the lectures there, and have the free use of our library, and every other accommodation we can give them; preserving, however, their independence of us and of each other."

Note that Jefferson referred to different religious SECTS, rather than different religions. Jefferson's understanding of the Constitution is in line with other founders, including Oliver Ellsworth, a Connecticut delegate to the Constitutional Convention of 1787, who, in explaining to the people the clause that prohibits a religious test for public office, stated, "A test in favor of any one denomination of Christians would be to the last degree absurd in the United States. If it were in favor of Congregationalists, Presbyterians, Episcopalians, Baptists, or Quakers, it would incapacitate more than three-fourths of the American citizens for any public office and thus degrade them from the rank of freemen."

Jefferson wrote his understanding of religious freedom with reference to the 10th Amendment, as follows: "I consider the government of the U S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U.S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority." From a letter to Rev. Samuel Miller, Jan. 23, 1808.

The last Chief Justice of the Supreme Court, William Rehnquist, got it right when he said, "There is simply no historical foundation for the proposition that the framers intended to build a wall of separation . . . the "wall of separation between church and State" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned."

In order for you to justify the statement that Bush broke a promise, you must prove, affirmatively, that Miers is not a strict constructionist. Your not being able to verify it independently is not proof that the promise was broken.

I'm not trying to prove it objectively to you or anybody else. My point was that this promise is subjective, so the breaking point of the promise is subjective. That some people take it as a broken promise is beyond question.

Also, what I argue is that strict constructionists can disagree on a given court case. Disagreement does not disqualify one or the other from receiving the label. Finally, if Alberto Gonzales proved himself not to be a strict constructionist on the TXSC, then that would disqualify him based on Bush's promise.

I don't know that this is true, that his record in Texas has been combed over and the evidence is less-than-convincing in either direction.

I agree that "strict construction" is an indefinite term. That is why the campaign promise (see above) subjective.

My question about "how would GWB categorize Gonzales on the scale of 'strict construction'?" is useful because it then provides a window into how GWB sees the term, "strict constructionist."

As for Gonzalez's record from the bench, I've posted this in about three threads today, sorry to be repetitous ...

I've tinkering with what I think could be a test to justify "trust in stealth." The object is to grasp the ramifications of "strict constructionist" in President Bush's rhetoric.
The term "strict constuctionist" is broad sweeping, indefinite. It tends to paint a view that conservatives find attractive, we are emotionally attracted to "strict constructionst," and yet we don't probe much deeper. Judicial conservatives (Federalist Society adherants, if you will) want what -THEY- see as strict constructionists. But what does George Bush consider to be a strict constructionist?
Would President Bush say that Gonzales is a strict constructionist? We have a record on Gonzales. So, while we can't probe the record of Miers, we might be able to get a handle on how flexible or rigid the term "strict constructionist" plays out from President Bush's rhetoric.
I see Gonzales as a judicial activist. The link below explains how I reach that conclusion. He and Owen were on opposite sides of the parental notification case in Texas. Tha case is a clear window on the interpretation of "strict constructionist." Either Owen is a strict constuctionsit, or Gonzales is, but it is not logical that they both be.
The sophists will argue that the court let the law stand, no legislation from the bench. Or that the court didn't strike down the law, so there was no judicial activism. I say read the case and draw your own conclusion. By the sophists definition, the Florida Supreme Court was not activist in the 2000 election. But in fact, it was. And so was the Texas Supreme Court in parental notification. IMO.
http://www.freerepublic.com/focus/f-news/1500960/posts?page=70#70 <- link for the student

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.