Religious beliefs and the judiciary

Matthew Hoy
By Matthew Hoy on July 25, 2003

There's been a lot of hubbub on Capitol Hill in recent weeks over the nomination of Alabama Attorney General William Pryor to the federal Court of Appeals for the 11th Circuit. Pryor, a devout Catholic, has outraged the Senate Judiciary Committee's minority democrats with his professed belief that Roe v. Wade was a horrible court decision:

I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children. That's my personal belief.

Of course, this is the view held by a large minority of Americans, Catholics and Protestants alike. But this same view -- a deeply held, religious one -- is also a disqualifying one under the Schumer Doctrine. It used to be that a judge's credentials, temperment and ability to follow the law were what mattered when it came to being confirmed. Back then, a "well-qualified" rating from the liberal American Bar Association was the "gold standard" when it came to measuring fitness for the bench. But New York Sen. Chuck Schumer, and his like-minded Democrat colleagues, has determined that a nominee's personal beliefs trump all -- the Schumer Doctrine.

Since Roe is the Democrats' Holy Grail, no one is fit for the bench who doesn't agree with that decision.

Some Catholic groups have run ads, and some Republicans have charged, that Democrats on the committee are anti-Catholic because of the position they've taken on Pryor. This is not altogether accurate, nor is it totally inaccurate.

Religious belief is OK with Democrats: A) as long as it is in line with the liberal political orthodoxy; or, B) is not sincerely or deeply held.

In other words, you can be a Catholic and be confirmed to the federal appellate bench as long as you're not one of "those" Catholics who believes abortion is wrong. (This is where one of TAPPED's arguments falls flat.
Just because you're "Catholic" -- doesn't mean that you can't be anti-"those" Catholics -- the ones who follow the doctrine of the church.)

While this is not outwardly "designed" to keep believers off the bench, it has the practical effect of doing just that. Just like the Literacy Tests in the Jim Crow South outwardly were just that -- literacy tests -- they had the effect of keeping blacks from voting. (Helpful proctors would "assist" whites having a difficult time with the exams, but not blacks.)

The first signs this hostility to religious belief was on the rise in the Democratic Party was during the confirmation hearings for Attorney General John Ashcroft. Ashcroft revealed, and Democrats claimed to be "shocked," that some Senators had asked Ashcroft about his religious beliefs and if they would prevent him from carrying out the law. At the time it sounded very like some were pushing a religious test for public office -- having no strongly held religious beliefs -- in violation of the Constitution.

Republicans should avoid using the anti-Catholic tag on Judiciary Committee Democrats. It muddles the issue. Instead, they should loudly proclaim the fact that Democrats have created a litmus test many religious people will fail. The Democrats aren't asking nominees if they will follow the law. They are asking what is your religious belief on abortion. That is an unconstitutional test that goes beyond being anti-Catholic.


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July 2003



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