Defending the Democrats

Matthew Hoy
By Matthew Hoy on August 7, 2003

Josh Marshall, sometimes referred to as Paul Krugman's political brain, has an article in The Hill magazine defending Democrats on the Senate judiciary committee against the charges of an anti-Catholic crusade.

Marshall counterattacks on two points:

First, is opposing a judicial nominee for having doctrinaire views on abortion the same as demanding that he or she renounce the doctrine of transubstantiation? Of course not. And the difference goes to the heart of the matter. Transubstantiation is a matter of doctrine and faith. It hasn’t a whit to do with public policy or the public realm. It only has relevance to Catholics as Catholics.

Abortion is different. It’s a hotly contested political issue. And when we talk about abortion as a political issue, we necessarily mean more than what we would do personally or what rules should apply to members of our religion. We mean what rules should apply to everyone in society.

Religious believers argue that faith isn’t simply a private matter. It underlies the values and beliefs we bring to the public square. And they’re 100 percent right. But the shield that guards our private religious beliefs from any and every political scrutiny doesn’t follow those beliefs out into the public arena. Once our religiously rooted beliefs cross the membrane from the private to the public, they become no different from any other political beliefs. People are free to disagree with us and oppose us on that basis. That’s not bigotry. That’s democracy.

This is an intriguing argument, but it doesn't stand up to a critical examination -- at least with regard to Pryor.

Pryor has vowed to uphold the laws that he disagrees with -- he is subordinating his belief system to the law. And there is ample evidence, even when it comes to abortion, that he is guided in public policy by the law -- not by his beliefs. Why is there still opposition to him? Solely because of his religious beliefs -- not because of any evidence he won't follow the law. Therefore, despite Marshall's claims, this is a religious test.

Rewind to the 1960 presidential campaign of JFK. Some of Kennedy's opponents questioned whether a Catholic would be taking orders from the pope. Kennedy assured the American public they would be electing him to the presidency and not the pope. Certainly some voted against Kennedy because he was Catholic, but according to Marshall, those votes weren't "bigotry," but "democracy."

Part 2 of Marshall's argument:

Abortion, like affirmative action, is one of the most emotionally charged issues in American politics. Voters routinely choose to vote for or against candidates based on these issues. And senators of both parties have used judicial nominees’ positions on those issues to determine whether or not to vote for their confirmation, just as they do on the death penalty, gay rights and other issues.

Some argue that the president should be able to nominate judges who share his or her judicial philosophy without that much Senate meddling. But no one thinks that anything is untoward or bigoted about raising those issues or voting down judicial nominees on that basis. Senators from both parties have done it countless times.

But Santorum says it is a problem if the judicial nominee roots his or her opposition to abortion in their Catholicism.

Look where that gets us …

If you’re a secular humanist and opposed to abortion (Nat Hentoff, say), senators can vote against you because of your pro-life views. Or if you’re a Christian from a denomination that doesn’t take a clear stand against abortion (Episcopalians, say), they can do the same. But if you’re a Catholic who has down-the-line pro-life views, no senator can take a position on your nomination for any reason having to do with your stand on abortion.

That makes Catholics with ardent pro-life views a protected class. All a pro-life president would need to do would be to nominate only Catholics to the bench to stack the court with pro-life jurists. An anti-death-penalty president could do the same with religiously based opponents of capital punishment.

That stands everything we believe about the separation between church and state on its head.

This is another interesting argument, but it is based on a troubling assumption: the pro-choice litmus test is valid public policy. I've argued before that the anti-Catholic label isn't wholly accurate and should be more accurately described. But the Democrats use of a belief-test (once again, it's what the candidate believes, not how they will act) that excludes a large (and growing) minority of the American public.

Democrats are reaping what they have sown. Prior to the 21st Century, a judicial candidate's religious affiliation and beliefs were largely irrelevant. What was considered was whether they had the expertise, qualifications and temperment necessary to serve on the federal bench.

Marshall's arguments are probably the best that can be made for the Democrats' position, but they aren't good enough to shield the Senate Democrats from well-deserved criticism.

*UPDATE* Hugh Hewitt has more.


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August 2003



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