Catholics and the
Court
By ROBIN TONER, the
NYTimes on the Web, August 7, 2005
IT is, in many ways, a triumph of
assimilation, a marker in the political ascendancy of American Catholics:
After more than a century when there was typically only one "Catholic seat" on
the Supreme Court, Judge John G. Roberts, if he is confirmed next month, will
become the fourth Catholic on the court.
So why is there so much simmering tension about Judge Roberts's religion and the
role it should -- or should not -- play in his coming confirmation process?
Religious conservatives contend that liberal Senate Democrats are trying to keep
"people of faith" off the federal bench. Some Catholic conservatives
quickly declared that any questions about Judge Roberts's beliefs were utterly
out of line. Democratic leaders, for their part, angrily deny that they
are the ones injecting religion into the debate, and take particular offense at
being accused of anti-Catholicism, since many of them are Catholics themselves.
All this fury is largely pre-emptive; Democratic leaders say they have no
intention of grilling Judge Roberts on his religious beliefs (which several of
them share) in next month's confirmation hearing. But the role of religion
in the public square -- for voters and public officials -- is one of the most
contentious debates around these days. And the influence of a judge's
faith and personal beliefs may be growing just as contentious, as abortion, gay
rights and other social issues come increasingly under the purview of the
courts.
Which leads to the question: how relevant are a nominee's religious views?
Friends and political allies have described Judge Roberts's active and
conservative brand of Catholicism, which he shares with his wife, Jane Sullivan
Roberts, as an important part of their lives. Many social conservatives
clearly took his religious background as a positive sign about his judicial and
political philosophy. But any deeper probing of his religious views and
their implications for his rulings strikes some Catholics as reminiscent of a
more prejudiced time.
"I think it's unfortunate that we're still at a point in our nation where we
have to ask these questions," said Douglas W. Kmiec, a professor of
constitutional law at Pepperdine University.
Lisa Cahill, a professor of theology at Boston College, argued: "Just as
with any candidate, his track record is the key thing. People have a lot
of communal identities and roles that go into their public stance -- maybe a
political party, maybe a religious tradition, maybe the Elks Club -- and I don't
think it's fair to pick out the religious tradition and suggest that will
determine his views."
Paradoxically, scholars like David Yalof, a political scientist at the
University of Connecticut, note that Catholicism, like other religions, has not
been a very good predictor of judicial conduct. "We have a small sample of
Catholic justices now, and there's no pattern on whether their Catholicism
determined anything," said Mr. Yalof, author of "Pursuit of Justices:
Presidential Politics and the Selection of Supreme Court Nominees." "Are
you a Scalia Catholic, a Brennan Catholic or a Kennedy Catholic?"
Barbara Perry, an expert on the Supreme Court at Sweet Briar College, said that
President Dwight Eisenhower very carefully picked Justice William J. Brennan Jr.
to reinstate the "Catholic seat" in 1956, which happened to be an election year,
and noted that Justice Brennan eventually became one of the key supporters of
the constitutional right to abortion.
There is, moreover, a tradition in American Catholicism of public officials'
drawing a clear line between private beliefs and public duties. That line
was most famously defined by John F. Kennedy, who told the Greater Houston
Ministerial Association in September 1960, "I do not speak for my church on
public matters, and the church does not speak for me."
Gov. Mario M. Cuomo of New York reiterated that line in 1984, declaring that
while he accepted the church's teachings on abortion, he could not impose those
views on a pluralistic society.
The Senate Judiciary Committee that will review the Roberts nomination next
month is in many ways a case study in Catholic political independence and
diversity: 4 of the 8 Democrats are Catholics, and 2 of the 10
Republicans.
Still, in recent years, the American church has grown increasingly divided over
the responsibilities of Catholic elected officials to promote church teachings
-- particularly on abortion -- in their public lives. Last year, some
conservative bishops threatened to deny communion to Catholic elected officials
who disagreed with church abortion policy, including the Democratic presidential
nominee, Senator John Kerry. Some analysts say the blurring of that line
has inevitably heightened the interest in Judge Roberts's religious background.
R. Scott Appleby, a historian at Notre Dame, said the bishops' stance "eroded"
the broad area of discretion that Catholic laity have historically had in their
professional lives, "and I think that's unfortunate." He added, "That in
itself planted the seeds for the kind of controversy that is now going on"
around Judge Roberts, "someone who those bishops would very much approve of."
Still, even as some church leaders try to exert more influence over Catholics in
political life, several scholars noted that judges are not elected officials.
Mr. Kmiec, the former dean of Catholic University's law school and a former
Reagan adviser, said that the church has "never argued that someone serving in
the role of a judicial officer has the duty or even the encouragement to impose,
in the scope of that judicial office, their faith." In short, a judge is
not supposed to be making the law, but merely applying it.
In the ideologically polarized climate of the current judicial battles, there is
little room for scholarly parsing. Senator Richard J. Durbin, the Illinois
Democrat on the Judiciary Committee, tried to have a private discussion with
Judge Roberts about their shared Catholic religion and found himself embroiled
in controversy and denounced by religious conservatives. Senator Patrick
J. Leahy, the ranking Democrat on the committee, said he was once denounced on a
Sunday morning talk show as "anti-Christian or anti-Catholic" -- while he was at
Mass.
"It's a world upside down," said Mr. Leahy, who spoke nostalgically of the
bright lines drawn by Kennedy in 1960.
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