Still Supremely Protestant-less

As the Supreme Court nomination anticipation heats up, Dahlia Lithwick's piece for Slate reads more like a sigh than anything else. Lithwick suggested that the short lists everyone keeps writing about don't tell us very much except what people--media included--expect to see the next fight over the court. Lithwick made some observations about many of the short lists, one of which is something we watch closely here at GetReligion. Many of the lists don't offer much religious background about the candidates.

As an anthropological document, the Bloomberg News list reveals a good deal about the general fatigue of the court-watchers. We've become so reliant upon the old scripts about "activists" and "umpires" and abortion and religion that we prefer them to experimenting with new ones. Whatever populist rage emerged following the Citizens United decision probably won't translate to the naming of a populist nominee. The Bloomberg shortlist speaks volumes about the White House and its political calculus, as well as the political rut in which we all find ourselves. It also says almost nothing about what Obama wants in a judge--beyond a confirmation.

Right before Justice John Paul Stevens announced his retirement, we looked at an NPR story that examined the possibility of a Protestant-less Supreme Court. Here's how NPR broke down the short list of candidates:

As attention focuses on a potential replacement for Justice Stevens, the two leading contenders to succeed him are Jewish - Solicitor General Elena Kagan and Appeals Court Judge Merrick Garland - while another often-mentioned name, Michigan Governor Jennifer Granholm, is Catholic. Yes, there are some Protestants in the mix, too; among them, Federal Judge Diane Wood. But it remains a distinct possibility that when the dust settles and a new justice takes his or her seat, there will be no Protestants on the high court.

We also looked at a Washington Post story that looked at the impending Protestant absence from the high court when Stevens retires. Now the Los Angeles Times and The New York Times have weighed in since then, adding voices and further context to the question of whether religious background matters when choosing the next justice. Here's the LA Times:

But religion has been intertwined with the nomination process. President Eisenhower famously nominated William J. Brennan Jr. to the court in 1956 in a bid to woo Catholic support for his reelection campaign.

Now, the court's conservative wing--Samuel A. Alito Jr., Anthony M. Kennedy, John G. Roberts Jr., Antonin Scalia and Clarence Thomas, all appointed in the last 25 years by Republican presidents--is entirely Catholic. Obama's first nominee, Sonia Sotomayor, makes six.

That is a sizable number considering that the United States has elected just one Catholic president, John F. Kennedy, who had to reassure voters that his faith would not interfere with his duties as president.

The story touches on several points, like the court's current makeup and whether scholars believe it matters either during the nomination process or once the justices make it on to the court. Unfortunately, the article doesn't really touch on implications, whether the justices would matter on issues like abortion, religious freedom or other cases. For examples, here are some cases we've discussed in the last year.

The New York Times throws in a few historical reference points shows the reader why religion in or out of the spotlight is so significant.

There is, for instance, no official photograph of the justices from 1924. The court had to cancel its portrait that year because Justice James C. McReynolds, an anti-Semite and a racist, refused to sit next to Justice Louis D. Brandeis, the first Jewish justice.

The fact that William J. Brennan Jr. was Catholic seemed to figure in President Dwight D. Eisenhower's decision to nominate him to the court in the election year of 1956.

But when Justice Abe Fortas resigned in 1969 from what was considered the "Jewish seat," President Richard M. Nixon saw no political gain from replacing him with another Jew, settling instead on Harry A. Blackmun, a Methodist.

Unfortunately, the article ends on a strange note, throwing in some suggestions from professors without allowing them to elaborate.

For his part, Professor Stone said there were ways a justice's religious affiliation could have an impact on the court. President Obama, for instance, could nominate an evangelical Christian.

Mark Tushnet, a law professor at Harvard, had another suggestion. President Obama, he said, could use Justice Stevens's retirement as an opportunity both to honor tradition and to break new ground.

"The smartest political move," he said, "would be to nominate an openly gay, Protestant guy."

So how would an evangelical Christian have an impact on the court? And why would an openly gay, Protestant justice be the smartest political move? By not allowing these professors to elaborate, the nomination process seems reduced to a sports draft, rather than a serious consideration of whether religion actually matters when justices make rulings.

Moving forward, reporters have about a month or less to look into the potential Supreme Court nominees. Let us know if you see any particularly good or bad profiles of the leading candidates.

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