Questions of faith

John G robertsWashington 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.

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  • Kelly

    So if one accepts your critique of Dionne, that religion should not be a part of the confirmation hearings because it’s not a political position, what do you do with the other half of his argument? Should Christian organizations cease campaigning for him because it’s not a political position? As much as many Christians argue for particular judicial philosopies, it’s hard to believe that for them these philosophies are anything but means to desired religiously informed ends. I honestly don’t know where I stand on this but it seems like you can’t have it both ways.

  • Harris

    The Roberts nomination is another instance of Terry’s “ghost”: religion is a subtext here. Sen. Durbin’s question was in fact, germane, what happens when religious faith encounters issues that may seem to be in violation of its tenets? What does a believer do? What takes precedence, the law or one’s convictions? As we all have that dividing line between our public role and private convictions, the issue for a justice is where that bright line is for him or her.

    The question is real. Clearly the religious activists believe that faith should have the priority — Roberts’ demurral suggests another way out.

    Beyond the question of the bright line, there is the more nebulous question of how private religious conviction intersects with and informs decision-making. This is the “ghost.”

    In the context of the Roberts nomination, one might wonder to what extent he follows the general outline on Catholic social teaching, particularly in the area of the death penalty. Or what about honoring the dignity of labor? Or what standings do aliens — illegal immigrants– have?

    The question is not whether he has answers, let alone the “right” political answers, but whether he is aware of these moral dimensions. This would seem to be the legitimate and ultimately more significant religious questions to ask.

  • http://carsonversusdoe.com Joe

    New York Times

    July 30, 2005

    Roberts Nomination Raises the Issue of the Role of Religious Faith in Public Life
    By PETER STEINFELS

    Scarcely had Judge John G. Roberts been chosen for the Supreme Court than religion reared its lovely head. And just as swiftly, opponents and supporters of the selection traded accusations over who was responsible.

    Were opponents playing with religious prejudice and trying to erect an unconstitutional religious test for public office? Were supporters smearing the opposition and trying to block legitimate lines of inquiry about Judge Roberts’s views by charging that these amounted to anti-Catholic or anti-religious hostility?

    From the narrow viewpoint of this column, all this attention to religion could be welcomed as simply that much more grist for the mill. The partisan maneuvering is not really that hard to detect and discount.

    But these exchanges threaten to convey a subtler message, not partisan at all but at least as questionable. The message has little to do with Judge Roberts in particular but much about the way Americans assume that serious religious commitments can be related to professional or public life in general.

    The message comes from the judge’s friends as much as from his critics, from people trying to defuse the issue of religion in his candidacy as much as from those trying to raise it.

    Consider what are already becoming routine descriptions – that Judge Roberts and his wife, Jane Sullivan Roberts, are devout Catholics but don’t wear their faith on their sleeves; that Judge Roberts hews to his religion but keeps it separate from his legal judgments; that the couple’s faith, as one priest who knows them put it, “would affect their personal lives, but they are very professional in their work.”

    Those offering such descriptions probably don’t intend the impression that they leave, which is of a warm but conventionally contained religious faith. No doubt this is partly the effect of journalism’s need to pick a clear phrase or two out of a complex explanation. But the lingering impression is ultimately shaped by the poverty of the culture’s categories for understanding how a devout religious faith can be related to professional or public responsibilities.

    That impoverished understanding breaks down into two dichotomous possibilities:

    One possibility assumes that a serious religious commitment entails fairly direct guidance for making professional or public choices as well as personal ones. Some believers testify to finding that kind of guidance in the verses of a sacred text, the opinions of religious authorities or introspective searching into their own hearts.

    The other possibility restricts serious devotion to the strictly personal. Faith, often embodied in specific ritual observances, provides a sense of meaning, discipline, inspiration and solace. Religion inculcates honesty, care and loyalty in family and other personal relationships; but apart from elementary injunctions to decency and bars to lying and cheating, other activities are governed by the separate codes and demands of the workplace, whether that is a corporate law firm, a science laboratory, the United States Senate or the Supreme Court.

    Many conservatives, especially religious ones, applaud the first way of relating religious commitment to professional and public life as authentic; they scorn the second way as half-hearted and inconsistent, a kind of amputated faith. They have a point. But is the first way, which many liberals, both secular and religious, fear as potentially arbitrary and intolerant, the only alternative?

    This dichotomy between the personal and the public comes naturally to a Western culture that for half a millennium has been gradually freeing areas like law, science, medicine, politics and economics from direct oversight by religion. What gets overlooked is that there are good religious reasons for welcoming much of the autonomy that these areas of human activities have eked out.

    Thus the devoutly religious judge who works within a secular framework of constitutional interpretation, the scientific researcher who rules out divine interventions in her empirical search for causes or the entrepreneur who operates on the basis of market dynamics may be doing so not because they have set their religious faith aside, or compartmentalized it into their personal and family lives, but precisely because their faith informs them that these may be the best ways of putting their particular talents at the service of God and their neighbors.

    Of course, a great many pious people leave their religion behind when they head for their jobs, but a great many others have not only chosen those jobs but also diligently abide by the secular standards of those occupations out of religious motives.

    Ultimately, it is true that for the serious believer no secular system can escape completely from religious evaluation and judgment. A religiously faithful judge working within a secular constitutional order that brings Hitler to power may have to reconsider his role. A point may come when the scientist questions a whole line of research. The entrepreneur is likely to confront situations where the laws of supply and demand seem to clash with the laws of God.

    The fact that this respect for the autonomy of secular activities can never be absolute lies behind the question that Senator Richard J. Durbin, Democrat of Illinois, reportedly asked Judge Roberts and that Senator John Cornyn, Republican of Texas, reluctantly asked him as well, perhaps in a different form.

    Could the judge conceive of circumstances in which his faith would conflict with his ability to make decisions on the basis of civil law and, if so, what would he do? It is not clear how Judge Roberts answered, nor is it clear whether this question belongs in a confirmation process at all, certainly if it is asked only of nominees of one particular faith.

    But it is a question that believers need to reflect on, nonetheless. One of the classic cases for the autonomy of political life from religion, from the “ethic of the Gospel” or “the ethic of absolute ends,” is found in Max Weber’s 1918 lecture, “Politics as a Vocation.” But even there, quoting Luther, Weber praises the person who comes to an ethical turning point where pragmatic calculations no longer apply, and can only say, “Here I stand; I can do no other.”

    “Every one of us who is not spiritually dead,” Weber declared, “must realize the possibility of finding himself at some time in that position.”

  • http://molly.douthett.net Molly

    Hmm. Seems to me that on this one, the WAPO and NYT “getreligion”. Whaddya think, tmatt?

  • tmatt

    I tend to judge these things by what happens in the hard news stories, not the op-eds. We all know that a prog Catholic such as Dionne is very literate on issues of faith.

    The key: It is OK when faith shapes one’s actions in areas such as Civil Rights or apartheid. It is not acceptable when it shapes one’s actions related to the Sexual Revolution.

    I also, as I keep saying, do not view life issues in a strictly left-right framework. There are many progressive pro-lifers. Roberts’ wife may or may not fit in there. Let’s ask questions and then quote people accurately and see what happens.

  • francis

    Didn’t “Separation of church and state” have something to do with “no religious tests for office”?

  • tmatt

    francis:

    Not if an issue touches on some aspect of the Sexual Revolution. As the Catholic theologian Maureen Dowd would say, The Right cannot repeal Woodstock.

  • francis

    Oh, yes I forgot the first demandment:

    “Thou mayest very well have other gods beside me, and worship them, and kneel before them, as long as my dominance reigns supreme.”

  • http://dpulliam.com dpulliam

    Questions relating to Roberts faith are unnecessary. Supreme Court Justices rule on principle not results. Asking Roberts about how he feels about issues is not relevant to the issue because as a justice, he will not be considering about the results of the case, he will be considering of the legal precedents being established. This is why he supported the arrest of a little girl on the metro station for eating a French fry. Leave politics to the politicians and end ridiculous political campaigns by partisan groups and for/against potential justices and this includes articles examining the faith of Roberts.

    The reason I pointed out Dionne is because he should know better. Sure the NYT and the WaPo have written articles on the candidate’s faith, but they have also written dozens of other articles examining his legal philosophy. Dionne should know better.

  • Kelly

    Daniel,

    Welcome to GR. I have appreciated and enjoyed your other posts so far but this one troubles me. The idea that religion can and should be separated (by a ‘wall’?) from politics, judicial philosophy, or anything else is a false one that both conservative and progressive Christians have been fighting for a while. The article by Peter Steinfels quoted above lays out the problem fairly well.

    To my knowledge, the distinction between faith affecting political views versus faith affecting judicial philosophy has not been examined very closely. Dionne is making the assumption that they are not all that different and I am inclined to agree. For better or worse, I find it difficult to believe that the religious right believes passionately in ‘Strict Constructionism’ over and above believing that abortion should be stopped, and that’s ok. A nice, modern, liberal concept like the universality of human rights trumping privacy rights would work just as well to overturn Roe v. Wade but it doesn’t align as well with the views of the political party with whom the religious right has chosen to align itself.

    It is a complex issue and Dionne handled it quite well. His point that there is a link between religious groups campaigning for nominees and Senators asking nominees questions about religion is a point that you conceded in your last comment, you just chose the other side. He said they should both talk, you said they should both be quiet. It’s not an issue of ‘Dionne should know better’. You simply have a religiously informed difference of opinion.

    It probably would be good to stick to hard news rather than opinion columns in the future – that’s where views about religion are hidden behind ‘factual’ reporting through (sometimes) subtle language use, ommissions, and misrepresentations.

  • ceemac

    My mischievous side has the better of me this morning.

    I think I am in favor of a religious test for judges. But I want Stanley Hauerwas to administer and grade the exam.

    Any candidate who passes such a test is bound to be someone who would annoy both Focus on family and NARAL.

    Even better, let’s put Hauerwas on the court.

  • http://dpulliam.com dpulliam

    Kelly, I appreciate your comments, and particularly about sticking to hard news stories (you’d think I’d know better).

    But I am inclined to disagree with your argument. I believe that judicial philosophy is separate from religious belief. Asking nominees to give their views on various issues would corrupt the integrity and independence of the justices. It would allow presidents put in justices who have promised to vote in a particular way on various issues.

    The court’s intention is to set broad rules, not particular laws. And most of the cases that come before them, they do not hear, so judicial philosophy is even more important. If we Otherwise we end up with a political superlegislature.


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