Washington Post columnist E.J. Dionne believes that questions of faith should be asked of Supreme Court nominee Judge John Roberts. His argument is based on the idea that politicians invoke religion only when it benefits them, and for that reason Roberts should answer questions about his faith, just as any other candidate for office.
Conservatives typically praise religious activism on abortion and homosexuality but dismiss liberal clerics who offer theological insights on economics or social spending. Liberals love preachers to speak out for civil rights and economic justice. But they see "a church-state problem" the instant anyone in the clergy speaks out for vouchers or against abortion and stem cell research.
In the case of Roberts, Republicans appreciate the intense lobbying on his behalf by conservative Christian groups and see the nominee's faith as part of his appealing personality. But when Sen. Richard Durbin took Roberts's religious commitments seriously enough to ask him how they might affect the judge's court rulings, the Illinois Democrat was accused of . . . dragging religion into politics.
Dionne believes that conservatives don't want Roberts questioned on his faith and how it would affect his judicial philosophy because they fear it will impair his path to confirmation. Liberals want the questions asked in the confirmation process for the very same reason.
It's all so political. Senators want Roberts on the record stating how he will rule on certain issues before they support his nomination, and for obvious reasons. If Roberts turns out to be the key vote overturning Roe, moderate Senators supporting Roberts will have their lunches taken from them in the Democratic primaries. Senators like Clinton and Edwards, people who desperately want to become president in three years, are in a bind.
Since religion plays such a key role in deciding how many people think on issues like abortion, shouldn't those religious views be put on display for the country to examine? Actually, no, Dionne misses the entire point of having a court system independent of the other branches of government.
As my friend (and the person responsible for my start in blogging two summers ago) Lucas pointed out to me in an email conversation discussing this piece, Dionne and others are forgetting a basic principle governing the nomination of Supreme Court justices. They are not politicians; they are arbitrators of law who are charged by the Constitution to rule on cases on the basis of their legality, not morality, and certainly not for political reasons. On this basis, questions on a potential justice's faith are out of line in a Senate confirmation hearing.
Appropriate questions would relate to the nominees' attitudes towards interpreting the Constitution or why type of cases they would hope to bring before the court, giving Senators an idea of nominees' legal priorities. Supreme Court judges are not policymakers. They are interpreters of the law, and asking questions relating to policy only hurts the Supreme Court through politicization. Roberts must refuse to answer any questions regarding his faith (and how he would rule on individual issues), because as an interpreter of the law, his faith should have no effect on his decisions.
Some would say that Roberts' Catholicism could make the difference in a case like Roe, but this is also wrong. Roberts could quite easily argue that Roe was wrongly decided as a legal matter, but his convictions on the morality of abortion should have nothing to do with the decision.
Justice Antonin Scalia has said that if the Catholic Church ever required a vote contrary to what he would choose on a matter of legal principle, he would recuse himself from voting or possibly quit. This obviously hasn't happened, and it is doubtful it would happen for Roberts or any other justice.