Winter 2006, Vol. 8, No. 3

Table of Contents
Winter 2006

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Articles in this issue

From the Editor:
Blogging on the Religion Beat

Libert, Equalit, Islam

Religion and the Supremes

Intelligent Design On Trial

Special Supplement
A Symposium

After Katrina

Winning Hearts and Minds in Kashmir

No Peace for the Church

Tokyo's Dr. Phil

Letters to the Editor



Religion and the Supremes
by David W. Machacek


In the year of the three Supreme Court nominees, religion seemed critical to the fortunes of each. Coincidence? On George W. Bush's watch, not likely.

But first, the prequel.

In April of 2003, the president nominated Alabama Attorney General William H. Pryor to the U.S. Court of Appeals for the 11th Circuit. Immediately, Pryor began drawing vehement opposition.

In an April 11 editorial titled " Unfit to Judge,"  the Washington Post took him to task for calling Roe v. Wade "the worst abomination of constitutional law in our history." Other opponents noted his support for lessening church-state separation generally, and for then Alabama Supreme Court Chief Justice Roy Moore's placement of a 5,280-pound Ten Commandments monument in Alabama's state judicial building in Montgomery.

In the course of the controversy, it emerged that Pryor was a Catholic. And in July, amidst an acrimonious battle over the appointment in the Senate Judiciary Committee, conservative Republicans, led by former White House counsel C. Boyden Gray, formed a political action committee called the Committee for Justice, which proceeded to run newspaper ads accusing Senate Democrats of anti-Catholic bigotry.

Vigorous counter-punching began in the press and extended into confirmation hearings in August, when Sen. Orin Hatch of Utah, over the objections of senators including Republican committee chair Arlen Specter, put Pryor through a series of questions that connected Pryor's legal thinking and his Catholic faith.

Few outside professional GOP circles seemed persuaded that Pryor was being persecuted by Democrats for his Catholicism, but the dust-up was effective in mobilizing the Republican base, raising money, and putting Democratic critics of the President's judicial nominees on the defensive when it came to morally loaded issues.

With that prelude, religious contention entered the journalistic discourse over the Supreme Court when John Roberts was nominated to replace retiring Supreme Court Justice Sandra Day O'Connor in July.

George Washington University law professor Jonathan Turley fired the first shot on July 25, in an op-ed column in the Los Angeles Times. Turley recounted that during a private interview with Illinois Senator Richard Durbin, Roberts said that he would "probably have to recuse himself" if the law" required a ruling that his church considers immoral."

That was the "wrong answer," Turley wrote. "In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States." Though," to his credit, Roberts did not say that his faith would control in such a case," the possibility that the nominee's faith would interfere with his ability to perform his duty in some of the most difficult and controversial cases likely to come before the Court, is "not a subject that can be ignored."

Senator Durbin's office denied the account, but the issue was put, and for many liberal commentators it seemed that this was a question that should be raised.

"No one has made an issue out of any nominee's ability to live by his or her religious convictions in private life," wrote Cathy Young in the Boston Globe August 1. "The question is whether a jurist's or politician's religion should play a role in his or her views on law and policy.... We are now light years away from the era in which John F. Kennedy made his plea for separation of politics and faith. We live in a time when there is growing movement, backed by most conservatives, for the Catholic Church to excommunicate public officials who support abortion rights."

Cataloguing the apparent contradictions of righteous culture warriors is a favorite media pastime, and there was no shortage of it in the debate over John Roberts's nomination.

Washington Post columnist E. J. Dionne, Jr. summarized it this way on August 2. Republicans "see the nominee's faith as part of his appealing personality. But when Sen. Richard Durbin took Roberts's religious commitments seriously enough to ask him how they might affect the judge's court rulings, the Illinois Democrat was accused of ...dragging religion into politics."

"We have no religious tests for public office in this country," Dionne quoted an "indignant" Sen. John Cornyn saying. "But just four days earlier, Sen. Tom Coburn (R-Okla.) was unabashed in hoping that Roberts's religious convictions would influence his decisions on the court."

As it turned out, Roberts's record was not easily pressed into the culture war mold. Denver Post columnist Diane Carman reported on August 7 that the revelation of Roberts's "energetic involvement in overturning Colorado's anti-gay-rights amendment...created some real cognitive dissonance in the evangelical community."

Over the next several weeks, question marks started appearing in the headlines. Clearly, Roberts was a conservative, but what kind of conservative? Opinions on the right, such as American Enterprise Institute Fellow Christopher Levenick's August 18 column in the Weekly Standard, started featuring words like "speculation" and " uncertainty." On church-state issues, Roberts appeared to be to the right of Justice O'Connor, whom he would be replacing, but, Levenick averred, "one can never be sure."

The Economist, on August 27, wrote similarly of the "court's delicate balance" on abortion, school prayer, and public religious displays. "Secularists fear that Mr. Roberts may upset it. Many evangelicals are praying that he will. But because he appears to have spent the past 30 years preparing for his Supreme Court confirmation hearings by expressing as few controversial opinions as humanly possible, neither side is sure."

Overall, concluded Nancy Gibbs in the September 5 issue of Time, "the very deliberate examination of his every argument and memo and decision has revealed a more complex character than initial reports promised."

On the question of how his faith might influence his decision-making as a justice, Sheldon Alberts reported for CanWest News Service on September 14, "Roberts said he shared the view once expressed by former president John F. Kennedy."

"My faith and my religious beliefs do not play a role in judging," Alberts quoted Roberts saying. "When it comes to judging, I look to the law books.... I don't look to the Bible or any other religious source."

That answer frustrated some conservative Catholics, such as Patrick O'Hannigan writing on the same day in the American Spectator. "In other words," O'Hannigan wrote, " said the nominee, "'I'm Catholic, but I'm a judge, not a spokesman for the Catholic Church. You want Fulton Sheen, you're a little late. You want Benedict XVI, you know where to find him.'"

But it worked, with Roberts winning confirmation easily with 78 votes, 22 of them from Democrats.

Next up, religion was central to the Harriet Miers debacle, but not in the way most cultural warriors would have predicted. It is impossible to say which of many missteps and miscalculations doomed Miers's nomination. But surely one of them was the apparent assumption by the Bush administration that the GOP's religiously conservative base would accept the nomination on faith alone.

On Monday, October 3 - the day her nomination was announced - James Dobson, founder of Focus on the Family and one of most prominent anti-abortion activists in the nation, released a statement saying that he trusted the president's personal knowledge of Miers and his assertion during the announcement that she would not use the bench to write social policy.

Reportedly, presidential advisor Karl Rove had called Dobson and other conservatives before the announcement to reassure them about the pick. "Some of what I know I am not at liberty to talk about," Dobson told David Kirkpatrick in the New York Times October 3.

Over the next several days, papers were filled with reports of Miers's conversion to evangelical Christianity and membership in a Dallas church that opposes abortion. Of the effect of her conversion on her opinions, long-time friend and fellow church member Nathan Hecht, an associate justice on the Texas Supreme Court, told Julia Duin in the October 5 Washington Times, "She realized life begins at conception. Taking a life after conception was serious business, and therefore you could not do it without a good reason."

It was hardly surprising that such reports made reproductive rights advocates nervous, but reporters were astounded by the emergence of vehement opposition from the right.

While the left appeared "cautious" about the nomination, in the words of Michael Scherer writing in Salon October 4, the right was "furious."

The most popular explanation of the conservative rebellion was that the right wanted assurances that Miers, who had no judicial track record, would not turn coat. Rupert Conwell cited Kansas Republican Senator Sam Brownback to this effect on October 6 in the British daily, the Independent: "He warned that she could be a repeat of David Souter, the present justice who was appointed by the first President Bush in 1990, on the assumption that he was a solid conservative," but "has invariably sided with moderates."

With no written opinions to go on, "There's no way for us to verify...what she will do in the heat of battle," Rick Scarborough, president of the conservative pastors' alliance Vision America, told Wayne Slater October 7 in the Dallas Morning News.

It probably didn't help that, anticipating liberal opposition to the nomination, supporters tried to place Miers in a moderate light. Judge Hecht assured Dallas Morning News writer Sam Hodges on October 5, "You can't extrapolate from a person's personal views to how they're going to judge a case."

So, in order to quell the uprising, the Bush administration began to play up Miers's membership in a pro-life evangelical church. That brought out the predictable cry from opinion writers. "Now we know," wrote E.J. Dionne, Jr. in the October 7 Washington Post, "President Bush's supporters are prepared to be thoroughly hypocritical when it comes to religion." Democratic Senator Richard Durbin had "his head taken off" for suggesting that John Roberts might reasonably be questioned about the impact of his religious faith on his decisions as a justice, but now that Harriet Miers was "in trouble with conservatives, her religious faith and how she lives that faith are becoming central to the case being made for her."

Bush tried to recast the issue by indicating that Miers's faith was an aspect of her character. But the damage was done. On October 15, Jeff Brumley reported in the Florida Times-Union that some evangelical groups, including the Orlando, Florida-based Liberty Counsel, had "called on the president to withdraw her nomination."

Most journalists, like members of the Bush administration, worked to understand what had happened.

For years, Christian conservatives had struggled to establish the intellectual credibility of their positions on constitutional issues. "When you become a Christian in the true sense of having a conversion experience and having a relationship with Jesus Christ," a Dallas evangelical told T.R. Goldman in the Recorder October 17, " that doesn't mean you walked out and had a frontal lobotomy."

Robert Bork - a legal scholar, co-chair of the Federalist Society, and warrior for the cause of conservatives on constitutional issues - was the model Christian conservatives had long had in mind for a justice to represent their perspective on the high court. Not a low-profile crony like Harriet Miers.

"The right," wrote Time's Nancy Gibbs October 17, "didn't care about her heart as much as her other muscles, her constitutional brilliance, her persuasive powers, her ability to walk into all that marble and make some history." When the Judiciary Committee sent back a questionnaire she'd submitted, characterizing the responses as "inadequate," "insufficient," and "insulting," the knell had tolled.

The ground shifted again in the case of the year's third Supreme Court nominee, Samuel Alito, Jr. Now the key question was Catholicism. When the Supreme Court began its new term with John Roberts as chief justice, David Savage and Maura Reynolds observed in the October 20 Los Angeles Times that the occasion was the first time in the court's history that there were fewer Protestants on the court than Catholics.

Yet, despite the great willingness of politicians and others to rumble over faith and judicial nominees demonstrated during the previous two years, this dog never really barked. " Indeed," Savage and Reynolds offered their own discussion stopper, "Religious faith has not been a particularly good predictor of a justice's legal views." The contrast between justices Antonin Scalia and Anthony M. Kennedy - both Catholic, both appointed by President Reagan - made the point.

Journalists dutifully reported that, if confirmed, Alito would be the Court's fifth Roman Catholic. But few had anything to say about what this might mean for the future direction of the Court on controversial matters and it took a while for any sort of "Catholic thesis" to emerge.

Noah Adams of National Public Radio's All Things Considered found an interesting nugget on November 2, when he asked William Saletan of Slate why it was " that anti-abortion presidents seem to increasingly look to selecting a Catholic justice?" Answered Saletan, "If you look at the external evidence...the Catholic justices who are appointed by Republican presidents turn out to be much more reliable voters against abortion...than the Protestant justices appointed by Republicans."

Alan Cooperman of the Washington Post did a bit better in explaining the sudden prominence of Catholics. The main reason Republican presidents are turning to Catholic jurists, he wrote November 7, is because "so many of the brightest stars in the conservative legal firmament are Catholics."

Franklin Foer extended that argument in the November 14 New Republic: "The emergence of the Court's Catholic bloc reflects the reality of social conservatism: Evangelicals supply the political energy, Catholics the intellectual heft."

Foer cited several examples of evangelical reliance on Catholic rhetoric in public moral debates, including the "culture of life" theology that featured prominently during the Terri Schiavo controversy and George W. Bush's invocation of the terms "solidarity" and "common good" during his 2000 election campaign.

Joseph Bottum of the Weekly Standard offered Foer unexpected support, writing in a January 17 piece on that "a surprisingly large portion of the nation's serious moral analysis (now) seems to derive from Catholic sources."

For much of American history, mainline Protestant religion provided the public "moral vocabulary," Bottum wrote, but with the decline of the mainline denominations, " a hole had opened at the center of American public life, and into that vacuum were pulled two groups that had always before stood on the outside looking in: Catholics and evangelicals."

And in the conservative alliance that formed between them, "the rhetorical resources of Catholicism - its ability to take a moral impulse born from religion and channel it into a more general public vocabulary and philosophical analysis - have come to dominate conservative discussions of everything from natural-law accounts of abortion to just-war theory."

But is there really a coherent "Catholic block" emerging on the Supreme Court? Religion and religious connections may now play a role in the appointment of judges, but it's not yet clear that they behave predictably once they take a seat on the bench. Indeed, once the Alito confirmation hearing got going in January, the religious identity question died abruptly. As Michael Conlon of Reuters noted on January 11, the prospect of a Catholic-majority Court seemed to come down to "little more than a curiosity."

To be sure, Alito was questioned more than any other Supreme Court nominee in memory about his views on the Court's religion jurisprudence. But, asked by Chicago Tribune reporters Margaret Ramirez and Manya A. Brachear how his Catholic faith might influence his rulings, Cass Sunstein of the University of Chicago Law School said that after sifting through more than 240 Alito opinions, he had found "no evidence at all that his religious convictions are playing a role in his judicial conclusions."



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