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
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
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
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
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
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
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
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
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
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 CBSnews.com 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
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