April 7, 2010

If the last Protestant — Justice Stevens — leaves the Supreme Court, won't President Obama have to appoint a Protestant?

Nina Totenberg examines a topic people think they aren't supposed to talk about.
Let's face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, "religion is the third rail of Supreme Court politics. It's not something that's talked about in polite company." And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss.
I've written about it — on this blog and in the NYT.

Totenberg:
Professor Mark Scarberry at Pepperdine law school, a self-described evangelical Protestant, says there should be no religious test for appointment.

"But I don't think that that means that a president shouldn't pay at least some attention to religious diversity on the court," he said. "It does seem to me that when you have such a large part of the country that has a particular sort of religious worldview, if there is no one on the court who is able to understand that worldview in a sympathetic way, then that creates difficulties."
I think that since we talk about the race/ethnicity and sex of the Supreme Court nominees, we should talk about religious affiliation. Religion is an even more important aspect of diversity, since it resides in the human mind, and it is the mind that will be making the decisions that bind us. (Is it Protestant of me to think that religion resides in the human mind?)

It's odd how the problem has gone without notice until we are at the point where the Supreme Court will be composed entirely of Catholic and Jewish Justices. It does seem quite wrong to look at the short list of potential nominees and disqualify the very impressive candidates who are not Protestant. That seems like outright discrimination. But why is giving preference to a Protestant any different from going after  a female/Hispanic candidate, as President Obama did with the last appointment?

74 comments:

Fred4Pres said...

No because it is okay to discriminate against Protestants.

Fred4Pres said...

Okay, I was just kidding above.

Actually I am going to put my chips on Diane Wood. Protestant and XX.

If only Althouse was in the running. But Meade's open tea partying has ended that possibility.

ironrailsironweights said...

Is it Protestant of me to think that religion resides in the human mind?

I thought you were of the Hebraic faith.

Peter

Hagar said...

Ummmm. What denomination of Protestant did you have in mind?

XWL said...

This'll be fun. I'm sure President Obama and Senate Democrats would like to avoid confirmation hearings, but if Stevens is done, Stevens is done. He shouldn't stick around because it would be politically inconveninet if he were to end his service this year.

Should there be a vacancy, maybe President Obama will try a novel approach (at least novel to him) and pick the person that fits his notion of what makes a qualified justice (because elections matter, his definition is what matters, even when it is likely to deviate greatly from my personal preference), and forget all the other box-ticking nonsense as far as creed, ethnicity, or orientation.

(I would say more, but I'm trying to conserve pixels)

Freeman Hunt said...

I think it's logical that faiths with more "laws" would produce more jurists.

David said...

Justice Thomas is Catholic? I did not realize.

I still think he should nominate Dershowitz. Liberal, smart, suffers fools ungladly.

It would be fun to see Dershowitz and Scalia go at it. I predict a draw.

Dershowitz has several drawbacks:

1. Too old
2. Jewish
3. Makes Obama look bad on Israel
4. Too independent minded. Thus Unpredictible.

Instead of a brilliant independent liberal mind, we will get a hispanic female Protestant named O'Grady.

Freeman Hunt said...

Heh. But live by the rule, die by the rule. I guess Obama better find an Evangelical for diversity's sake.

El Pollo Real said...

Excuse me but aren't muslims and buddhists underrepresented on the SCOTUS too?

traditionalguy said...

That's the ticket. We need a fundamentalist that can quote the Constitution in the original language, not the newspeak of weasle worded penumbra language.

Kirstin said...

What would Sandra Day O'Connor (Episcopalian) say?

kentuckyliz said...

Prots are generally anti-nomian, so it seems perfectly appropriate that Catholics and Jews should be the high priests of the law.

I say that as a Catholic. With a friendly tone.

Besides, Protestant is a negation (what you're protesting, what you're against), Catholic is affirmation (katholikos is universal, affirming, the both/and).

Mr. Obama wants the Constitution re-read for our positive rights (rights to what), not merely our negative rights (rights from what), so Catholics fit the bill.

Especially if they studied those 60s-70s era Vatican II documents and post-conciliar encyclicals with all that social justice stuff that so riles Glenn Beck. Lotsa human dignity positive rights crap in there. Very communitarian and social obligation and we are the world so let's all drink a coke and hold hands.

Poifick.

Brian said...

Excuse me but aren't muslims and buddhists underrepresented on the SCOTUS too?

Of course! Don't we need a S.C. justice who brings to the bench the wisdom of Sharia law?

Michael Hasenstab said...

There are no military veterans on the supreme court. Shouldn't the next nominee be a vet?

Or an atheist to counter-balance all the Catholics and Jews. Although the oath would be problematic.

kentuckyliz said...

Will the last Protestant please turn off the lights on the way out?

"Last Protestant" sounds so LaHaye, like it marks Jesus' return or something.

Most non-Catholic Christians are post-Protestant. They don't stem from the Reformation and don't reference their beliefs to that era's arguments. It's so sixteenth century.

kentuckyliz said...

We need a Wiccan, to rebalance the scales after that whole Salem thing.

It's only fair.

kentuckyliz said...

In the Catholic Chambers of SCOTUS, there's a yellow and white phone, a direct line to B16 himself.

j/k

kentuckyliz said...

The yellow and white phone is perched atop a votive stand, just under the statue of Mary.

Treacle said...

I come from a long line of hard right Baptists from the South. My family members went to Bob Jones. I have never heard anyone ever say a word about how many Protestants are on the Court. I hear a lot of love for Scalia and, to a lesser extent, Roberts and Alito.

This is not an issue.

Michael Hasenstab said...

Whoever it is, the next nominee must be a true scholar, one who can read the constitution in the original Aramaic.

It's a plus that he or she has been able to completely modify a 460cid Chevrolet big block engine and install it in a B-Altered coupe and run low elapsed times at the local drag strip.

Cedarford said...

Hillary is a Protestant, isn't she?

"Shudder, shudder".

========================
I think another Catholic or Jew would be politically difficult. Especially a Jew, which would make Jews 1,300% more ovverepresented on SCOTUS than their percent of actual population. A 7th Catholic would mean they were 75-80% overrepresented...if you count all the illegal aliens/

How about a moderate-Centrist lesbian atheist, for a change?

Alex said...

Especially if they studied those 60s-70s era Vatican II documents and post-conciliar encyclicals with all that social justice stuff that so riles Glenn Beck. Lotsa human dignity positive rights crap in there. Very communitarian and social obligation and we are the world so let's all drink a coke and hold hands.

KentuckyLiz - I find that Catholics have more in common with Marxism then anyone is willing to admit. There's a real synergy there.

William said...

Liberals believe in social justice (as they define it). This belief trumps the tenets of all known religions. No matter where he goes on Sunday, the true and abiding faith of any justice Obama appoints will be fundamental liberalism.

Paul Snively said...

kentuckyliz: Most non-Catholic Christians are post-Protestant. They don't stem from the Reformation and don't reference their beliefs to that era's arguments.

I think my fellow Lutherans (Martin Luther), the Presbyterians (John Calvin), the Methodists (John Wesley), the Reformed Church (John Calvin again), the Amish and Mennonites (Jakob Amman), etc. might beg to differ with you. :-)

Michael Hasenstab said...

@KentuckyLiz - His Holiness was in a meeting one afternoon at the Vatican, when a Cardinal room into the room, holding a telephone.

"Your Holiness!!" he proclaimed, "It's a miracle!! Our Lord and Savior is calling you on this telephone!!"

"Oh, my God!" says the Pope, falling to his knees.

"Ah, Holiness, I'm afraid that there's also some bad news", says the Cardinal, "so prepare yourself."

"Bad news? How can there possibly be bad news?" asks the Pope. "This is confirmation of what we have believed for more than two thousand years!"

"Your Holiness", says the Cardinal, "He's calling collect. From Salt Lake City."

Thanks, and tip your usher on the way out.

Pogo said...

Too bad they can't find someone who is just a first-rate legal mind, rather than having to pick from what's left after passing through the 17 Official Filters of Postmodernism, including the always-popular Race Colander and the indispensable Gender Sieve.

Michael Hasenstab said...

@Pogo - I'm with you, but Robert Bork has no chance of being nominated.

Dust Bunny Queen said...

If Justice Ginsberg leaves won't President Obama have to appoint an ugly Jewish spinster?

Pogo said...

@Michael Hasenstab
Rats.


Was it that obvious?

kentuckyliz said...

Alex--but Catholic teaching doesn't prescribe any particular economic or political system. One can always have an opinion whether the social teaching should be accomplished by one's own voluntary charitable acts, or whether it's mandating a government program. There are economic and political conservative Catholics as well as leftist Catholics. It's a big tent.

Paul--the mainlines are dying, the growing lines are non-Reformation in origin, evangelical and pentecostal. I know the provenance of the several tens of thousands of denominations and have an interesting reference work for that purpose. There are post-Protestant non-Catholic Christians who do NOT want to be referred to as Protestant. They will deny it vociferously. More common than you know.

kentuckyliz said...

I think there's lots of gender discrimination in the SCOTUS. They need a tranny.

kentuckyliz said...

Why aren't GLBTQQQ's marching in the streets demanding a GLBTQQQ justice?

Seems like their moment, with the whole marriage is a civil right project.

Cedarford said...

"Michael Hasenstab said...
There are no military veterans on the supreme court. Shouldn't the next nominee be a vet?"

Not true. Anthony Kennedy was active duty California National Guard. Samuel Alito was Army Reserve with periods of active duty.
Both are Veterans.

avwh said...

I would hope a Protestant has life experiences that makes him/her able to make wiser decisions than all those over-represented Catholics & Jews already on SCOTUS.

paul a'barge said...

Nina Totenberg, shine my shoes!

jimbino said...

Now's the time to appoint an ATHEIST. I know there are no atheists in foxholes, but are there no atheists among lawyers and jurists?

Of course there aren't, for reasons of PC? Then this is a great opportunity to appoint an ATHEIST NON-JURIST, someone like Hitchins, Harris or Dawkins.

Cedarford said...

"Dust Bunny Queen said...
If Justice Ginsberg leaves won't President Obama have to appoint an ugly Jewish spinster?"

Ruthie isn't a spinster. She is married to a notable business tax lawyer named Martin Ginsburg. I read one of his textbooks years back. He's still alive.

rachel tot said...

Maybe a Scientologist among a few good men will make the short list.

mRed said...

"Excuse me but aren't muslims and buddhists underrepresented on the SCOTUS too?"

Hey, get in line. Us lapsed Episcopalians were here first! We scooped up the goodies and then drank them all away. Ergo, a drunk lapsed Epissco should get the seat. Talk about a worldview!!!!

WV: pedimot. Yep, we drank that away too.

Michael Hasenstab said...

None of the justices appears to have a visible tattoo, thereby disenfranchising millions of Americans who are tattooed.

The next nominee should have at least one visible tattoo, maybe a whole sleeve. And if it's a woman, a slut stamp on her back. And pierced nipples, slightly visible through a blouse.

Michael Hasenstab said...

OT/ In other news, Dick Leinenkugel, of the famed Leinenkugel brewing family, is rumored to be launching a campaign for the US Senate seat currently held by Russ Feingold (D-WI).

I'll drink to that.

And Brett Alonzo Favre has become a grandfather, making him the first active NFL player to be a grandfather. /OT

Rialby said...

Well since most mainline Protestant churches tend to be more Progressive Humanist than they are Christian Fundamentalist, what's the difference between appointing an Presbyterian and someone like Laurence Tribe?

Peter V. Bella said...

He will probably appoint a Buhddhist, a Muslim, or an atheist. These have been excluded and inclusion is all the rage.

edutcher said...

That this is an actual discussion is a disgrace. Any justice's religion should not even be up for debate. I'd say this is the result of the Lefties' continual efforts to divide the American people along every line possible, but that would be dishonest.

A lot of conservative Protestants obsessed about this for most of the 20th Century. If Jack Kennedy were one tenth the man people wanted to believe he was, he would have told Norman Vincent Peale and his Inquisition to to get fucked. And Romney should have done the same two years ago.

Michael Hasenstab said...

There are no military veterans on the supreme court. Shouldn't the next nominee be a vet?

Not a bad thought. Oliver Wendell Holmes didn't do too badly, did he?

Christy said...

Oh, I don't know, seems to me as though the original Protestants have much in common with the Tea Party.

I don't think it should be an issue.

Blue@9 said...

As an Asian-American, I'd like to see a fellow yellow on the bench.

Yours truly,

Blue.

bagoh20 said...

No matter how you dance around it, you either have an informal quota or you don't. By it's nature it's discriminatory and unfair. If Protestants or Atheists or Zoroastrians want represented on the court then strive for the position. That goes for sex and race too.

Or just accept that justice in not blind, we like to peak out from under the blindfold just to be sure we're not being too fair.

Fred4Pres said...

Oliver Wendell Holmes didn't do too badly, did he?

He was into eugenics, however.

Learned Hand would have been better.

traditionalguy said...

If religious depth is actually a factor, then the best qualified nominee is John Ashcroft. His appointment will have to wait until January 2013.His Christian faith is the brand that scares the establishment, both Catholic and Reformed tradition protestant, but it is the fastest growing one and the only truely racially integrated one.Now are you having a panic attack yet?

reader_iam said...

Given that in my time I've known idiots, smart cookies, assholes and fair-minded people of pretty much every religion, I'd fervently wish the religion part not become yet another focus of litmus testing over which to endlessly argue, with decreasing benefit to all involved.

Given that I know wishin' ain't gettin', better that I excavate my own brains with a hand drill and cut out my tongue with a serrated butter knife than enter this discussion beyond posting this comment.

bagoh20 said...

When it comes to decidin' right from wrong, I likes me a good religious Jew. Not one of them watered-down American lefty types either. Import one fresh from the holy land. A canary may have some important news to bring to the court.

Paul Snively said...

kentuckyliz: Paul--the mainlines are dying, the growing lines are non-Reformation in origin, evangelical and pentecostal.

There's some truth to this, but see also this. I also recommend Christianity's Dangerous Idea if you haven't already read it.

Michael Hasenstab said...

@Fred4Pres - Well now. Ms. Wood just may be tattoo-able.

In the feminist, non-offensive meaning of -able, or course.

Rick said...

Is it Protestant of me to think that religion resides in the human mind?

Yup.

traditionalguy said...

Rick...that is a protestant's weak point: believing that correct doctrine is the same as faithfullness in relationships with the God Head and with the other Christians. It does keep cults at bay, but accepting people as the are is a commandment. Teaching them good doctrine comes in a weak third later. Episcopalians are usually easy to have as friends no matter what the doctrines of the people are.

buster said...

What's the big deal about looking for a Protestant nomninee? There was a Jewish seat and a Catholic seat on the Supreme Court decades before the idea took hold that the Court's composition should be "representative" of America

kentuckyliz said...

Piskies are easy friends if you can tolerate the Anglophilic snobbery.

kentuckyliz said...

Native American Medicine Man!!!! That's what we need. Represent the aboriginal Americans.

Bob said...

If you really want someone with a fine legal mind there's no question where to go: the Vulcan community of Pennsylvania, centered around Carbon Creek.

And they won't be mouthing off at the next State o' the Union either, you can count on that. Really fine judicial temperament, those Vulcans.

David said...

Pogo said...
Too bad they can't find someone who is just a first-rate legal mind . . . "

Dershowitz.

Dershowitz. DERshowitz. DERSHOWITZ!!!

traditionalguy said...

The Protestant Reformation freed the heavy hand of Secular/Religious combinations that supported divine right Kings and functioned as a UN like authority that all kings submitted to under a feeling that there must be God's rule over the kings. Needless to say the Kings and Church ruled as if needing one another.Today that is the European Union's role. All legalistic religious systems function by first declaring that Everything is illegal, until the priests issue a ruling allowing it specially to be done. It works to create social order, but it is not a part of the American Tradition. We were born and bred in a Calvinistic Protestant culture that saw Catholics as an armed terrorist group, which the Catholics had earned. The Scots Irish Presbyterians and Puritan English never allowed any ruling from a high priesthood, rather all things were voted upon. The young Pilgrims came here on the Mayflower and did that quite successfully. They were the first Tea Partiers.

Michael Hasenstab said...

Has there ever been an actor on the SC? I don't think so. An actor who is also an attorney.

Ben Stein, pick up the red courtesy phone.

And, he's a Yale law grad.

Almost Ali said...

Religion is the sideshow, politics the main event.

And if Obama gets his way - which I expect he will - SCOTUS will look more like Dukes' Board of Trustees than a court of reasonable resort.

Chase said...

This is actually the easiest of questions. There are 2 parts that will help arrive at the answer:

1) Should a candidate's religious faith and practice matter in the choice and evaluation for suitability on the Supreme Court?

2) If the answer to #1 is yes - no matter how large or small it should count - then, since Protestants are over 51% of the population, the answer is yes.

Other than "women", what other "category" that matters (for example, right-handedness and brown eyes don't matter) in daily life has as large a percentage?






Seriously. What other category?

EnigmatiCore said...

Why not an atheist?

Duscany said...

Nina Totenberg: "Let's face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, "religion is the third rail of Supreme Court politics."

This is utter balony. The subject is only radioactive to Totenberg because she worries herself sick about abortion being over-turned but most Americans (and even most members of the commetariat) don't talk about it because they really don't think it's much of an issue, not because it's "radioactive."

This story is a prime example of an over-wrought reporter elevating her personal fears into what she imagines is a nationally suppressed issue.

Kyle Beckley said...

Please don't start this conversation... because the inevitable conclusion will be somebody who will insist on a Muslim for the sake of diversity (but totally forget about the Buddhist, Shintoists, and Flyingspagetimonsterists.)

People who focus on the diversity component of such a small court cannot create parity among groups once one considers the infinite ways that people can differ from one and other.

So, I prefer to stick to the more traditional approach; Disagree with me and you are dumb and/or evil.

Sheepman said...

It's odd how the problem has gone without notice until we are at the point where the Supreme Court will be composed entirely of Catholic and Jewish Justices.

It's not a problem unitl someone notices and makes it one. Thanks, now I have one more thing to get riled up about.

TimE said...

I'm an evangelical Protestant and generally disagree with Mr. Obama on most issues. Nevertheless, I hope the President appoints the *best* nominee irrespective of his/her background. I would likely tend to agree with an evangelical on most issues, but a having a judge who is an evangelical ensures neither competence nor rulings that I would find correct.

(I write this even though I suspect Prof. Althouse's post was tongue-in-cheek.)

Also: First time ever posting a comment on a public blog--go easy on me.

Tari said...

Where's my Orthodox Christian justice? I want someone who has to fast (translation: eat like a vegan and not drink alcohol) for weeks on end and gets really cranky because of it.

And it's actually ALL of Western Christianity that thinks religion resides in the mind.

former law student said...

Stevens' Northwestern alumni status put him more in the minority than his Protestantism.

Wherever the next SCJ studied law, let it be neither Harvard nor Yale.

Lance said...

As I think Snively suggests, there are protestants out there who do not view their denomination as insignificantly as non-protestants sometimes appear to do and they are also not necessarily aligned with big box evangelical christian world-views.

I would like to see a nominee with with stellar legal credentials from a mainline protestant denomination whose faith is informed by Reinhold Niebuhr.

That said I am most likely to align myself with someone whose beliefs (in any religion or its absence) focus on understanding the complexity of the human condition and on coaxing from us the better aspects of our nature.

I think if religion/belief is to be an issue the quality of a nominee's beliefs rather than the name of the belief system is the more relevant, if more difficult, thing evaluate.

reader_iam said...

The sharp nail in all discussions of this type is the definition of "coax" and--particularly in the minds of those who would do the coaxing--what boundaries separate "coax" from, for example, "compel."

Lance said...

The boundary between persuasion and force, yes I too think it is, at the margin, difficult. It is also unavoidable. Remember the Aesop's fable of the sun and the wind competing to see who could get a man to remove his hat? It's funny and true that something that can be explained clearly to children can also be something that, in detail, defies the limits of adult comprehension.