Q&A: Gary Bauer on the Miers Nomination

Former 2000 Republican presidential candidate Gary Bauer answered questions from Stan Guthrie, a Christianity Today senior associate editor, about President Bush’s controversial nomination of Harriet Miers to the Supreme Court. Bauer, a former domestic policy advisor to Ronald Reagan, is chairman of the Campaign for Working Families PAC and president of American Values , a Washington-area nonprofit conservative advocacy organization. Bauer is also a former president of the Family Research Council. This interview will also be posted on ChristianityToday.com.

President Bush’s nomination of Harriet Miers to the Supreme Court appears to be catching a lot more flak from Republicans than Democrats. That can’t be a good sign for conservatives, can it?

No, it isn’t, and it is troubling that we find ourselves in this position today. This didn’t have to happen, and it should not have happened.

Why did Mr. Bush nominate someone seen as an underqualified unknown when he had appointed so many excellent judges—such as Janice Rogers Brown and Michael McConnell—to the federal bench?

That’s a question only Mr. Bush can answer. He has stated why he chose her—that he has known her for many years and knows her values. However, Dr. [James] Dobson also noted on his radio show on [October] 12th that others had turned the nomination down, suggesting that Miers wasn’t necessarily the president’s first choice.

What bearing, if any, do you think Miers’s purported evangelical beliefs should have on the decision of Christians on whether to support her?

As an evangelical Christian, I am pleased by the opportunity to have another evangelical Christian on the Supreme Court, and I am personally comforted by her faith perspective. But that alone says nothing about one’s views of constitutional law, and in the case of Miss Miers there is, unfortunately, virtually no legal record on major issues to examine.

For example, Jimmy Carter, by all accounts, is a born again believer, even a deacon in his church. That has obviously had little impact on his views of law and public policy as it relates to values issues, like the sanctity of life.

I’m not the only one making this argument. Many of Miers’ biggest supporters, including Judge Nathan Hecht, are publicly saying that her personal views and her faith are irrelevant to how she will rule as a justice of the Supreme Court. Judge Hecht told The New York Times recently, “You can be just as pro-life as the day is long and decide the Constitution requires Roe.” Her faith tells us nothing about how she views stare decisis, the rule of precedent.

There is also a double standard here. Conservatives were rightly outraged when liberal senators tried to use John Roberts’ [Roman Catholic] faith as a disqualifier. Yet we are now being asked to make Miers’ faith her sole or primary qualifier.

Many conservatives feel profound disappointment at a missed opportunity to steer the Court back to constitutional sanity, even if Miers does turn out to be a conservative vote. They also, as the president asks them to trust him, have lost a lot of faith in Mr. Bush, who pledged to nominate people in the mold of Justices Scalia and Thomas. What damage do you think this flap could have on the political fortunes of the Republican Party?

The fallout could be tremendous.

There are millions of “values voters” who have donated blood, sweat and tears to elect conservative Republicans to public office in order get the courts back on track. Our values prevail at the ballot box, but we consistently lose in the courts—whether it’s life issues like partial-birth abortion or parental notification, the meaning of marriage, “under God” in our Pledge or the Ten Commandments on the courthouse lawn. Millions of Americans care deeply about these issues and now, for the first time in years, we have a conservative president and a relatively conservative Senate with 55 [Republican] seats.

But we can’t win this fight if we don’t have it. And, with all due respect to our president, Harriet Miers isn’t exactly the standard bearer we were expecting. We needed another Robert Bork, another Antonin Scalia. Even if Miers turns out to be a pleasant surprise, her nomination has validated the stealth strategy and gives us no assurances that there won’t be another David Souter next time. To borrow one of John Roberts’ baseball analogies, this was the time to hit a home run, and it looks like we bunted.

Consider this: When Byron White, a Roe dissenter, retired, Bill Clinton nominated Ruth Bader Ginsburg—an ACLU lawyer who advocated taxpayer funding of abortions and lowering the age of sexual consent to 12, among other things. Democrats didn’t demand balance then, and Republicans never even considered filibustering her. In fact, only three Republicans were willing to vote against her! President Bush should have nominated someone with a judicial/legal/philosophical record as clearly conservative as Ginsburg’s was liberal.

That is a long answer, but the point is this: The foundation of the Republican Party is moral issues. African-American pastors publicly broke ranks with the Democrats last year over the marriage issue. That was a tremendously brave thing for them to do. If Republicans are unapologetic about their values, if they speak to issues of the heart, of right and wrong, of faith and family, they will retain the majority.

But we have to confront the courts head on in a serious way. That was the expectation when President Bush was reelected with an expanded majority in the Senate. Just ask John Thune, who defeated Tom Daschle in large part on values issues and for Daschle’s obstructionism on judges.

You’ve taken a wait-and-see stance about supporting Miers. What do you have to see to support her?

I would need to see a very clear judicial philosophy that the courts do not set policy or make law in this country. She would have to convince me that she not only understands what strict construction means, but that she believes it and adheres to it. I would need to see a serious skepticism, even outright rejection, of the concept of the “living Constitution,” of “evolving standards,” legal ideas that allow activist judges to substitute their own views and preferences in place of the clear meaning of Constitution.

What does Mr. Bush need to do to get back on track?

First of all, the president needs to know that his conservative critics are not his enemies. We are his friends. And a true friend will speak up when they think you are making a mistake—whether it’s immigration reform, federal spending, or judicial nominations.

I want this president to succeed. I desperately wish he would employ the same moral clarity we have seen time and time again in the war on terror to the culture war here at home. When it comes to changing hearts and minds about the culture of life or the sanctity of marriage, the president has the biggest megaphone of all, and the courts are the front line of the culture war.