The Miers Test

It’s a sure sign of how low President Bush’s fortunes have sunk that the Supreme Court nomination of Harriet Miers, clearly intended as a deft feint to circumvent Senate mud-wrestling, is instead turning into a first-class political debacle.

In its desperation to find some traction, however, the administration appears to have crossed a constitutional line that it should not have crossed. As E.J. Kessler reports on Page 1, the White House and its surrogates have taken to suggesting that Miers is suited for the high court, if for no other reason, by virtue of her religious affiliation. That’s what the Constitution calls a “religious test,” and it’s explicitly forbidden in the strongest possible terms.

The ban is not ambiguous, coy or couched in qualifying language. It is presented dramatically as the final statement in the document, in the closing words of Article VI, just before the ratification and the signatures: “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

One can sympathize with the president’s plight. He must have thought he was being clever in choosing a longtime friend and ally for the court seat. He is publicly committed to moving the court rightward, but that’s a tricky step in the current environment. Anybody with a clear record of publicly stated views on the issues — whether legal, constitutional or political — would run up against the ideological divisions in the Senate and the punditocracy. To avoid that, Bush picked someone whose views are known only to him and a few close friends. That way, he could announce to the world that he had selected a candidate purely on the basis of her professional and personal qualities, while whispering to his base on the religious right: “Trust me, she’s on our side.”

Unfortunately for the president, he has reached a point where “Trust me” no longer works. His administration is burdened down by the combined weight of too many failures: the growing unpopularity of the Iraq War, the mishandling of Hurricane Katrina disaster, the budget deficit, the oil crisis and now the spreading stain of corruption scandals. His poll numbers are in the basement, his credibility is in tatters and even his closest allies now want their deliverables up front.

The Miers mess should be a wake-up call to the president. For the past five years, he’s governed by talking center and acting right. His rhetoric has been bipartisan and unifying, but his actions have nearly all reflected the agenda of the hard right. He’s achieved his objectives, usually by narrow, party-line margins, through a combination of bullying his opponents and rallying a strong, disciplined base.

That formula won’t work anymore. The political system is dangerously polarized, the public is exhausted and Bush no longer has the credibility to talk his way through it. He’s piled up too many failures.

This president has three years left to serve. He can choose to make this a moment of change, reaching out to all Americans and genuinely governing from the center, or he can try to dig himself deeper into his base on the right. The latter path may sound more comfortable, but as the Miers mess shows, it leads quickly into dangerous territory that’s best avoided.

In his Yom Kippur message to the Jewish community this week, Bush reminded us that we “merit forgiveness and mercy through repentance, prayer and acts of charity.” That’s a good place to start planning his next three years.

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The Miers Test

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