Asked what they would like to see in a Supreme Court nominee, Christian leaders from a wide range of backgrounds say adherence to the U.S. Constitution is more important than personal religion.
President Obama will make his second nomination to the high court following the announced retirement of Justice John Paul Stevens, who is the only Protestant on the bench. Six other justices belong to the Catholic Church, and two are Jewish. And while President Obama’s stated dedication to “diversity” might suggest the need for someone of another religion, several Christian leaders say the Constitution is the priority.
“I don’t think a person’s religious affiliation matters as much as their judicial philosophy,” Mathew Staver, founder of Liberty Counsel and the dean of Liberty University school of law, told Christianity Today. “The rule of law is not to push an agenda.
“It’s nice to have diversity, but the law is color blind, and your skin color or religious affiliation shouldn’t be reflective of your decisions,” he said.
Speculation has been rampant about Obama’s next nomination, because of the likelihood of a serious fight in the Senate if the president picks a true radical, as he has for many of his political appointees.
Many believe Obama will pick a moderate – by his definition – to avoid fallout ahead of the fall mid-term elections. The majority Democrats already must contend with the unpopularity of their health-care law and the surging resistance to government exemplified by the tea party movement.
Bloggers have pointed out Obama’s dedication to “diversity” and note that the court will not include a Protestant – the biggest faith group in the nation – when Stevens departs.
A blog at the Dallas Morning News raised the question whether the next justice should be a Protestant, citing Catholics Samuel Alito, Anthony Kennedy, John Roberts, Antonin Scalia, Sonya Sotomayor and Clarence Thomas, and Ruth Ginsburg and Stephen Breyer of the Jewish faith.
“Given that surveys show Protestants are easily the largest religious group in the country, representing slightly over half the population, should President Obama name a Protestant as Stevens’ replacement?” was the question.
“If we really mean to abide by Article VI of the Constitution that there be no religious test for public office, then we have to stop ruling people in our out on that basis,” responded George Mason, senior pastor of Wilshire Baptist Church.
He said, “Mathematics doesn’t need government to support its truthfulness; it just needs government to stay out of its way and not interfere. So does religion.”
Darrell Bock, a professor of New Testament studies at Dallas Theological Seminary, suggested a “qualified judge” should be the standard, not a “quota.”
Blog participant Lillian Pinkus, who identified herself as a “community volunteer,” suggested three qualifications: “The candidate must be a law-abiding citizen. The candidate must be eminently qualified to rule on matters pertaining to the Constitution. The candidate must have no religious, ethnic or other factor that prohibits him/her from recognizing the Constitution as it is written, as the Law of the Land.
“The treasure of America is embodied in our Constitution,” she wrote. “We must strike a balance which allows for the growth and development of our society while staying true to the words of our founders.”
Larry Bethune, pastor at University Baptist Church in Austin, wrote on the Morning News site that religion matters, but it is not the only thing.
“While I would hope President Obama might be sensitive to the religious makeup of the court as he selects a nominee, I would hope the new justice would be aware of the religious makeup of our country and committed to the Founder’s vision of religious liberty, the separation of church and state, and equal justice under the law – regardless of his or her personal religious beliefs. This commitment is far more important a protection to our common religious freedom than the personal religion of the justice.”
WND columnist Patrick Buchanan raised the diversity issue in 2009 when Sotomayor was nominated to replace Justice David Souter.
“The Supreme Court, far from being the last redoubt of the White Anglo-Saxon Protestant in America, reflects the collapse of that WASP establishment, and a rising racial, ethnic and gender consciousness and solidarity,” he wrote.
“Consider: In 45 years, no Democratic president has put a single white Protestant or Catholic man or woman on the court.
“Six nominees have been sent to Congress by Democrats since 1964: Thurgood Marshall, an African-American, four Jewish nominees – Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg and Stephen Breyer – and one wise Latina woman. Not since JFK put All-American Byron ‘Whizzer’ White on in 1962 have Democrats elevated a white Christian,” he continued.
“And who is the least represented minority in America on the U.S. Supreme Court? Not Catholics, who have two-thirds of the seats. Not Jewish-Americans, who though 2 percent of the population, have 22 percent of the seats. Not African-Americans, who at 13 percent of the population have 11 percent of the seats. And not Hispanics, who at 15 percent of the population will have 11 percent of the seats.
“No, the most underrepresented group of Americans – nay, the most unrepresented minority, the largest group of our fellow citizens never to have had one of its own sit on the U.S. Supreme Court in the modern era is – evangelical Christians,” he said.
The American Center for Law and Justice, a rights organization that has battled on behalf of Christians and Christian churches in venues up to and including the U.S. Supreme Court, said it will be watching the nomination and confirmation process closely.
“While there’s certain to be much debate about Justice Steven’s replacement, there is one thing that is clear – President Obama is likely to name a nominee who will embrace an extremely liberal judicial philosophy. Make no mistake about it – this appointment really represents more than just replacing one vote on the court. With a replacement who is likely to serve for 30 or 40 years, it’s clear this replacement will have a long-term impact on judicial philosophy and likely play a determining factor in decisions for decades to come,” the organization said.
The legal team at the ACLJ assembled an analysis of Stevens’ announcement and noted that his voice already was extreme at times.
“Stevens was the sole dissenter in Westside Community Schools v. Mergens,” the analysis noted. That was the case in which the court affirmed the Equal Access Act that requires schools to allow all student groups if they allow any.
“Stevens … suggested that the act would violate the Establishment Clause if legislators voted for the Act to promote religious speech in public schools, even though the Act on its face did nothing more than provide equal access.”
The analysis also cited Stevens’ opposition to the majority in Scheidler v. NOW, “a case in which the Supreme Court definitively rejected all of NOW’s claims when it ruled that the use of the federal Racketeer Influenced and Corrupt Organizations (RICO) statute – a law designed to combat drug dealers and organized crime – was wrongly used against the pro-life movement.”
Calling the decision a “tremendous victory for those who engage in social protests,” the ACLJ said Stevens believed the application was “too narrow.”
Liberty Counsel said in a prepared statement, “As Chief Justice John Roberts said during his confirmation hearings, judges ought to be umpires who simply call the balls and strikes. They ought not play in the game or change the rules. The American people deserve a Supreme Court nominee who respects the rule of law and who will set aside personal bias in order to be faithful to the Constitution.”
Christian activist Chaplain Gordon Klingenschmitt of the Pray In Jesus Name organization already has compiled a list of seven “liberal activists” whose names are believed to be under consideration in the White House now for Stevens’ position:
- Elena Kagan, who stepped down as dean of Harvard Law School to become solicitor general. Klingenschmitt called her a “bomb-thrower,” who “would rule as a pro-homosexual, pro-abortion, anti-Christian activist.”
- Diane Wood, a Chicago appeals court judge who was described by LifeSiteNews.com as “a radical supporter of legalized abortion.” She also previously sided with NOW in trying to extract huge financial damages from pro-life protesters.
- Merrick Garland, a Washington federal appeals court judge who was criticized by Ed Whelan of the National Review, who wrote, “I have zero illusions that a Justice Garland would help move the court in the right direction in undoing the damage of decades of liberal judicial activism. I merely have reasonable hopes that he’d move more slowly … in compounding the damage.”
- Janet Napolitano, the homeland security chief, who, according to LifeSiteNews.com, “has already won notoriety among the pro-life community for labeling opposition to abortion as a warning sign of violent ‘rightwing extremism.'”
- Leah Ward Sears, the first black female to serve as the chief justice of the Georgia Supreme Court, and targeted by pro-life organizations as someone who opposes “morals legislation.”
- Sidney Thomas, a Montana lawyer who now sits on the 9th U.S. Circuit Court of Appeals in San Francisco, the most liberal of all 13 appeals courts in the nation. Whelan has said, “Thomas is on the far Left of that far-Left court.”
- Jennifer Granholm, the Michigan governor and former federal prosecutor who has advocated for left-leaning causes.
Other names named floated include Harvard Law School dean
Denver Post columnist David Harsanyi said Americans should be paying attention.
“With all the praise being heaped on departing Supreme Court Justice John Paul Stevens, a person might have momentarily forgotten that the man spent a good chunk of the past two decades working to soften up the Constitution,” he wrote. “Rest assured, his replacement will take to the task capably — empathy above justice, and all that.
“But I wonder if the average American believes, like Justice Stevens, that an unelected federal agency like the Environmental Protection Agency should bypass Congress and, by fiat, regulate carbon dioxide, a chemical compound that permeates everything, without any consideration for cost or imposition or the electorate?
“Do most of them, like Justice Stevens, who dissented on the landmark Second Amendment case of D.C. vs. Heller, believe that once a judge deems something dangerous enough, that judge should empower government to ban it — even though that something happens to be explicitly protected by a constitutional amendment?
“Do they believe, like Justice Stevens, that government should continue to use racial quotas and preferences rather than allow citizens the freedom to succeed or fail on their own merits — or even their own luck — rather than color of their skin?” he wrote.