DOCTRINE MATTERS

Who Else Need Not Apply If Religion Comes Into It? (William Saletan, August 10, 2003, Washington Post)

It's true that many Catholics oppose abortion. Three years ago, in Stenberg v. Carhart, all three Catholics on the U.S. Supreme Court -- Anthony M. Kennedy, Antonin Scalia and Clarence Thomas -- voted to uphold a Nebraska ban on "partial-birth" abortions. A litmus test on that issue might have kept them off the court. But the test cuts both ways. The court's two Jews, Stephen Breyer and Ruth Bader Ginsburg, voted to strike down the Nebraska law on the grounds that such abortions might be necessary to protect the woman's health. That's consistent with recent statements of Reform and Conservative Jewish doctrine. If you buy the argument made by Hatch and Sessions, Republicans who voted against Breyer and Ginsburg because of their statements about abortion were enforcing a litmus test against Jews. [...]

Anti-abortion activists opposed the elevation of Breyer and Ginsburg to the court. In 1999, Pat Buchanan wrote, "If the Republican Party were truly pro-life and anti-judicial activism, neither Justice Ginsberg [sic] nor Breyer would have been approved." This year, the Cardinal Newman Society, the foremost Catholic collegiate organization, called for protests at commencement addresses by Breyer and by journalist Steven Roberts -- who, the Society noted in a quotation from his wife Cokie, "is Jewish [and] more sympathetic to the pro-choice side."

Senior Republicans in the Senate likewise opposed the confirmations of Breyer and Ginsburg for abortion-related reasons. In 1993, Sen. Don Nickles (R-Okla.), voted against Ginsburg. At the time, the Associated Press reported that Nickles "said he was worried that her position that restricting abortion rights would be sex discrimination might lead her to limit the rights of states to put restrictions on abortion." In 1994, Sen. Trent Lott, R-Miss., declared on the Senate floor that he would vote against Breyer in large part because Breyer's "views on abortion in general are questionable." Republicans subsequently elected Lott and Nickles to the two most powerful Senate posts.

Neither Lott nor Nickles brought up Judaism in their criticisms of Ginsburg or Breyer. But Democrats who voted against Pryor this year never brought up Catholicism, either. In a letter to The Washington Post earlier this month, C. Boyden Gray, who served as White House counsel to former president Bush and now chairs the group that ran the "Catholics need not apply" ads, failed to produce a single instance of a Democrat using the C-word. The religious-bias argument made by Hatch and his Republican colleagues doesn't require such explicitness. It merely requires that you oppose a judicial nominee because of his or her abortion views. If those views coincide with the doctrine of that nominee's faith, you're a bigot.

If Republicans believe that, they'd better start answering their own question. When they vote against judicial nominees who support abortion rights, are they saying that Reform and Conservative Jews need not apply?

Yes. If Reform and Conservative Jewish nominees approve of Roe v. Wade--which is not only anticonstitutional but against the Natural Law basis of the Declaration--then Republicans should oppose their elevation to the bench, just as Democrats oppose the nominations of devout Christians. The fact that the Constitution bars religious Tests does not mean peoples' religious views should not be considered. The only question here is what kind of political price the parties may pay. Being perceived as anti-Christian seems more dangerous. Posted by Orrin Judd at August 16, 2003 9:41 AM