A Matter of Faith

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"I don't see how we can have a separation of church and state in this government if you have to pass a religious test to get in this government. ... [I]f you demand expressions of religious faith from politicians, you are just begging to be lied to. They won't all lie to you, but a lot of them will. And it will be the easiest lie they ever had to tell ..."

Arnold Vinick
The West Wing

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A couple of days ago, I examined the likelihood that Barack Obama will have the opportunity, either this year or next, to nominate the replacement for Supreme Court Justice John Paul Stevens.

I discussed a number of the issues involved. But there was one angle I didn't explore. Today, Nina Totenberg of NPR did bring it up, and I am glad. Not because it matters to me but because it could influence the debate over Obama's nominee.

The angle Totenberg brought up? "[W]hen Justice Stevens retires, it is entirely possible that there will be no Protestant justices on the Court, for the first time ever."

That might not be an issue. When Stevens retires and Obama announces his choice for a successor, that successor could turn out to be a Baptist or a Methodist or a Presbyterian — or a member of another Protestant denomination.

But what if he nominates a Catholic? Or a Jew? Totenberg points out that three of the people who are frequently mentioned as the leading contenders are Catholic or Jewish.

And can you imagine the reaction if Obama nominates a Muslim?

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"In fact, six of the nine justices on the current court are Roman Catholic. That's half of the 12 Catholics who have ever served on the court. Only seven Jews have ever served, and two of them are there now. Depending on the Stevens replacement, there may be no Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all the justices were Protestant."

Nina Totenberg
NPR

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Given the fact that, as Totenberg observes, "almost nobody has noticed" the impact that Stevens' departure could have on the religious balance on the court, it might not be important to many Americans.

On the other hand, when you consider the issue of child sexual abuse that has plagued the Catholic church, adding a seventh Catholic to the Supreme Court might do more than raise a few eyebrows.

And if another Jew was nominated to the highest court serving a self–identified Christian nation (where less than 2% of the population is Jewish), there might be some backlash in the Christian community.

Personally, I don't think a jurist's religion should be of any more consequence than his/her political party affiliation. It smacks of a litmus test, like inquiring about a potential nominee's views on abortion.

But that's probably a perfect world we're talking about — and God knows this world is far from perfect.

The fact that a nominee has a religious faith — whatever it may be — seems to me to be a good thing. It shows that he/she has given a lot of consideration to issues that affect the human condition, that go well beyond his/her personal circumstances. Even if a nominee is an agnostic or an atheist, that, too, suggests the nominee has thought about things that are bigger than himself/herself and has come to a conclusion with which he/she is comfortable.

Such a demonstration of mental acuity does have meaning for me because it shows that the nominee (or, if confirmed, the justice) is capable of evaluating an issue from many sides and arriving at a fair and reasonable conclusion. That is relevant to all sorts of matters that could come before the Supreme Court — not just cases involving religious freedom.

In my own case, I am a journalist. I believe that freedom of speech and freedom of the press matter, and protecting those freedoms is paramount to me. I believe that all of our freedoms are important, but everything else depends on those freedoms.

Justice Louis Brandeis, the first Jew appointed to the high court, penned perhaps the greatest defense of freedom of speech in the high court's history in his concurrence in the Whitney v. California (1927) case (in which the concept of a "clear and present danger" played a prominent role):

"Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self–reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

I am a Protestant, but I would support whole–heartedly the nomination of anyone — Catholic, Jew, Protestant, whatever — with that kind of agile mind.

It doesn't seem to me that it could be said of a nominee who has simply shown no interest in religion (or, at least, not enough to form an opinion) that he/she has an agile mind — beyond cynically calculating how an expression of religious faith (sincere or not) could help his/her career goals.

And, as Arnold Vinick implied on The West Wing, some potential nominees will say whatever they think their listeners want to hear if they believe it will make it easier to get what they want.

A nominee's religion could be very important to some Americans, though, and for good reason. Supreme Court justices are not subject to the whims of voters so Stevens' successor could very well be on the court for two or three decades.

If a Protestant is not nominated, some Protestants in America might wonder if their interests will be represented in the high court's rulings.

Timing, as they say, is everything, and a lot may depend on whether Stevens decides to leave this year or next year.

Few Republicans in Congress have shown any interest in cooperating with Obama, and it is reasonable to expect that any new Republicans who are elected this fall will be unlikely to extend an olive branch to the administration.

If Stevens retires this year, Obama knows he will have 59 Democrats in the Senate who are likely to support his choice. But, rather than risk a messy confirmation proceeding that could further endanger Senate Democrats (nearly half the Democratic seats on the Senate Judiciary Committee will be on the ballot this year, and two are already believed to be at risk of a Republican takeover), he might choose a safe nominee (which might include picking a Protestant).

If Stevens waits until next year, it's anyone's guess at this point whether Democrats will still be in the majority in the Senate. But Obama will know that the next election will be more than a year away. If he prefers a nominee who breaks boundaries, 2011 may be a better time to do so — although not if his party loses its majority.

Given all the political considerations Obama will have to juggle, one would be justified in wondering whatever happened to the (alleged) separation of church and state.

Or, to quote an exchange from The West Wing, when Vinick asked President Jed Bartlet that question, Bartlet replied, "It's hanging in there, but I'm afraid the Constitution doesn't say anything about the separation of church and politics."

Choosing a Justice

Supreme Court Justice John Paul Stevens is a bit of a throwback.

The 89–year–old jurist, who has been on the Supreme Court for 35 years, says he will retire either this year or next year. Whichever one he chooses, though, he insists he will leave during Barack Obama's term in office to give him the opportunity to maintain the court's ideological balance.

Isn't that a quaint notion?

Stevens was nominated by a Republican president, Gerald Ford, who may have expected a centrist (or even a conservative), but he has turned out to be a leader of the liberals on the high court.

I guess it's possible Ford — who was more of a moderate than most office–holding Republicans are today — knew he was nominating a liberal back in 1975 (although I have heard Stevens describe himself, in spite of his opinions, as a conservative centrist). The backlash of Watergate had given Democrats huge majorities in Congress following the 1974 midterms, and Ford may have felt it was important to appease Democratic lawmakers.

All I really know about Stevens' nomination is what I have read in the Bob Woodward–Scott Armstrong book on the Supreme Court, "The Brethren," which suggested that Ford's main concern was not ideology.

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"Ford finally concluded the best choice would be a sitting judge, someone virtually unknown who had worked with distinction for years on the federal bench. ...

"A former law partner considered Stevens a lawyer's lawyer, and on the appeals court Stevens had been thought of as a judge's judge. He was noted both for thoroughness and for his sophisticated arguments.

"On the basis of a few moments of small talk, Ford had preferred Stevens. Stevens also seemed to have no partisan politics, no strict ideology. His anonymity would ensure a quick confirmation."

The Brethren (1979)

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I have to assume that, as brilliant as Stevens is reported to be — he had the highest grade–point average in the history of Northwestern University Law School — he is hopelessly mired in the past.

Why do I say that? Because, based on his statements, Stevens believes that a presidential nominee for the Supreme Court is habitually rubber stamped by the Senate. I guess that is understandable, given the fact that he sailed through, winning Senate confirmation by a 98–0 vote — although he ought to know better. During his tenure, not all Supreme Court nominees have sailed through the way he did. Ronald Reagan nominated Robert Bork, who was rejected by the Senate, and two other nominees — Douglas Ginsburg (in 1987) and Harriet Miers (2005) — were withdrawn when it became clear that they lacked enough support to be confirmed.

In fact, even before Stevens was appointed, both Richard Nixon and Lyndon Johnson ran into problems with their Supreme Court nominees.

Prior to that, though, no Supreme Court nominee had been rejected or forced to withdraw in Stevens' adult life so it isn't hard to see how he may have formed the impression that a president's choice for the Supreme Court usually gets the green light.

But things weren't as polarized when Stevens was a young adult as they are today.

Many political observers who have been studying the political terrain are predicting that the folks in Congress who belong to Obama's party are facing an uphill climb this year. Some — but not all — are forecasting that one chamber or both will shift from a Democratic majority to a Republican majority — and it hasn't been necessary to be a political science major to see that Republicans have grown less inclined to support Obama's proposals as time has passed.

One can only imagine how obstinate they will become if they take control of the Senate.

Of course, things can change between now and November. Unemployment may drop dramatically (although the administration is warning jobless Americans not to expect anything like that because last week's jobs report, which indicated the most significant gains in jobs in three years were posted in March, is likely to lure many discouraged job seekers back into the job market), and other things that could give Democrats a boost could happen.

And a Supreme Court nomination does not have to be confirmed by the House, only by the Senate, so, for the purpose of replacing Stevens (or any other justice who retires or dies), retaining control of the Senate is what matters. But, if those predictions prove to be accurate, Democrats may lose control of the Senate — or retain it by the slimmest of margins — when the voters go to the polls in November.

If that happens, Obama may not feel that he has the luxury of nominating a liberal if he must fill a vacancy next year. He may opt for a centrist, believing that person would have a better chance of avoiding a contentious battle and being confirmed.

Now, personally, I wouldn't have a problem with a centrist. I've never felt that ideological inflexibility had a place on the Supreme Court, whether it was a rigidity of the right or the left. But selecting Stevens' successor — or anyone else's — might be a much different exercise for Obama if he must wait until 2011.

There is a lot of uncertainty. The ominous predictions for Democrats may not come to pass. Or they might.

Anyway, my suggestion to Justice Stevens would be this: If he really wants Obama to choose his successor, he should announce his retirement soon — perhaps in a couple of weeks, when he turns 90 — while the Democrats hold the majority in the Senate.

While Democrats hold 59 seats in the Senate, Obama would be more likely to choose someone who would be to Stevens' liking.

If Stevens really wants to influence the selection, it's too dicey to wait until next year.

By then, the influence may belong to someone else.