"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 ..."
The West Wing
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?
"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."
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."