An ABC Nightline report noting that Samuel A. Alito Jr., if confirmed, would make the Supreme Court majority Catholic stated that "liberals do have some concerns about such a Catholic court." But the report quotes no identifiable liberals or Democrats expressing this view. Nor does it mention it is supporters of President Bush's nominees who have raised the issue of their religious affiliations while attacking critics as anti-religion.
On the January 24 broadcast of ABC News' Nightline, correspondent Jake Tapper reported that if Supreme Court nominee Samuel A. Alito Jr. is confirmed, a majority of Supreme Court justices will be Catholic. After noting that a majority-Catholic court "tends not to be something people make an issue out of, at least publicly," Tapper added: "But some liberals do have some concerns about such a Catholic court." Tapper quoted no identifiable Democrats or liberals during the segment, instead relying on a clip of John C. Green, senior fellow in religion and American politics at the Pew Forum on Religion & Public Life, who claimed: "There is some fear that they might, perhaps on some issues like abortion, carry out a kind of Catholic jurisprudence, you know, rather than reflecting a broader point of view."
Tapper's characterization of liberals' purported concern over a "Catholic court" and the imposition of a "Catholic jurisprudence" misrepresent the role that religion has played in recent nomination processes in at least two significant ways. First, to the extent that concern has been raised over a nominee's religion, that concern has generally focused not on the possibility that one particular religion might be disproportionately represented on the court, but rather that a nominee's religious beliefs might control his or her interpretation of the law -- a concern that has been expressed by both Democrats and Republicans. Had President Clinton nominated former New York Gov. Mario Cuomo to the Supreme Court, as was rumored to be a possibility, presumably few would have expressed concern that his Catholic faith would control his rulings. On the issue of abortion, for example, he has made it clear that he personally opposes abortion but does not believe that his religion should dictate someone else's access to it.
Second, missing entirely from Tapper's report was any indication that it has been, in fact, supporters of Bush's nominees who have made religion a key issue in the nomination process. In 2003, two years before Bush's first nomination to the Supreme Court, supporters of his appellate court nominees had begun the drumbeat of accusations that Democrats and liberals bore an anti-Catholic or anti-religious bias. In 2003, the conservative Committee for Justice (CFJ) raised the issue in ads criticizing Democratic opposition to appeals court nominee William H. Pryor -- a vocal abortion opponent who has described Roe v. Wade as "the worst abomination of constitutional law in our history." CFJ published newspaper ads baselessly claiming that "some in the U.S. Senate are attacking Bill Pryor for having 'deeply held' Catholic beliefs to prevent him from becoming a federal judge. Don't they know the Constitution expressly prohibits religious tests for public office?" The ads featured a picture of a courthouse with a sign reading, "Catholics need not apply." Responding to the ad campaign, a July 26, 2003, Washington Post editorial asked: "But who exactly is 'playing politics with religion' here? We are aware of no instance in which any Senate opponent of Mr. Pryor has raised his religion -- nor did the Committee for Justice produce an example in response to our inquiries. The only people raising Mr. Pryor's Catholicism, rather, seem to be his supporters."
As the Newhouse News Service reported on July 29, 2003, "The issue of Pryor's Catholicism surfaced at a June 11 hearing in Washington when Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, asked him to state his religious affiliation." From the June 11, 2003, hearing:
HATCH: OK. Now, just for the record, what is your religious affiliation?
PRYOR: I'm a Roman Catholic.
HATCH: Are you active in your church?
PRYOR: I am.
HATCH: You're a practicing Roman Catholic?
PRYOR: I am.
HATCH: You believe in your religion?
PRYOR: I do.
HATCH: OK. I commend you for that.
After Sens. Arlen Specter (R-PA) and Patrick Leahy (D-VT) objected to Hatch's questions, Hatch responded by connecting criticism of Pryor's anti-abortion views to his Catholic faith. Addressing Pryor, Hatch stated:
HATCH: You've also been asked extensively about your personal beliefs with regard to Roe v. Wade, which almost everybody for a circuit court judgeship is asked -- in fact, everybody is, because that seems to be the be-all, end-all issue to some people on this committee. But of course, being asked those questions, as I understand it, that stems from your pro-life beliefs, which in turn are rooted in your religious beliefs.
Hatch later stated: "The left is trying to enforce an anti-religious litmus test."
The Newhouse article quoted Green -- who on Nightline suggested a liberal fear of "Catholic jurisprudence" -- as saying that the Republican strategy of highlighting Pryor's Catholicism "may even lead some Republicans to be irritated because it would appear to bring religion four-square into the debate."
Conservatives made similar charges of religious bias following Roberts's and Alito's Supreme Court nominations. Fox News' Sean Hannity, for example, baselessly claimed that, following Roberts's nomination, Democratic senators were "creating this litmus test" based on faith. On the day of Alito's nomination, Joseph Cella, president of the conservative "Catholic-based advocacy organization" Fidelis, issued a press release stating: "Given the likelihood of a vigorous debate, we remain steadfast in our insistence upon a fair and dignified process free of any attack on Judge Alito's Catholic faith and personal beliefs." Citing no examples, Cella added, "Early attacks by left wing interest groups are particularly worrisome."
Tapper echoed these attacks on Nightline, reporting that even though the Constitution prohibits "religious tests" for public office, "sometimes" senators "raise the issue, as Chief Justice John Roberts found out in his hearing." Tapper then played footage of Roberts telling Sen. Dianne Feinstein (D-CA) on September 13, 2005: "My faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books, and always have. I don't look to the Bible or any other religious source." But Feinstein was not suggesting that Roberts's Catholicism should disqualify him from the court, as Tapper's "religious test" comment would imply; rather, the question from Feinstein to which Roberts was responding asked about his views on separation of church and state:
FEINSTEIN: In 1960, there was much debate about President John F. Kennedy's faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion. And he even said, "I believe in an America where the separation of church and state is absolute." My question is: Do you?
That concern was not unique to Democrats. Earlier in the same hearing, Specter asked Roberts:
SPECTER: When you talk about your personal views and, as they may relate to your own faith, would you say that your views are the same as those expressed by John Kennedy when he was a candidate, when he spoke to the Greater Houston Ministerial Association in September of 1960, quote, "I do not speak for my church on public matters and the church does not speak for me," close quote?
As Media Matters for America noted, Democratic Sen. Richard J. Durbin (IL) was accused of invoking a "religious test" after he reportedly asked Roberts about his Catholic faith during a private meeting. But in contrast with the extensive coverage Durbin's question received, the press was largely silent when a Republican senator was reported to have asked similar questions. According to a July 23, 2005, Associated Press article, Republican Sen. Tom Coburn (OK) also acknowledged asking Roberts "a question about how his Catholic faith influences his life and work." Coburn went so far as to suggest that a nominee's "personal faith" was relevant to the to "the Roe v. Wade situation."
From a July 23, 2005, Associated Press article:
"If you have somebody first of all who has that connection with their personal faith and their allegiance to the law, you don't get into the Roe v. Wade situation," he said. "I am looking for somebody who is not going to make that mistake again in any other area of life."
Coburn said the records of Associate Justices Antonin Scalia and Clarence Thomas were examples for the next justice to follow.
Moreover, Roberts's supporters trumpeted his religious faith after leading conservatives were apparently assured of his religious bona fides. As Media Matters has noted, The New York Times reported in a July 22, 2005, article that "two well-connected Christian conservative lawyers -- Leonard Leo, chairman of Catholic outreach for the Republican Party, and Jay Sekulow, chief counsel of an evangelical Protestant legal center founded by Pat Robertson," won support for Roberts from social conservatives "with a series of personal testimonials about Judge Roberts, his legal work, his Roman Catholic faith, and his wife's public opposition to abortion." Leo, who also serves as executive vice president of the conservative Federalist Society, said on the July 25 edition of CNN's Inside Politics: "My goal is to make sure that the Catholic community and others involved in Republican politics understand who Judge Roberts is and who are in a position to -- and are in a position to support him."
Other Roberts supporters, including New York Times columnist David Brooks and Media Research Center president L. Brent Bozell III, noted Roberts's Catholicism. Syndicated columnist Robert D. Novak said on the July 19, 2005, edition of CNN's Anderson Cooper 360 that he was "sure" Roberts wanted to overturn Roe v. Wade, adding: "He's a devout Catholic. I think he's pro-life. His wife is a pro-life activist."
The Bush administration's emphasis on religion continued with the failed nomination of Harriet Miers, who was picked to replace retiring Justice Sandra Day O'Connor. Green was quoted in an October 17, 2005, Legal Times article as saying, "The Bush administration is assuming that Harriet Miers' religious background as an evangelical will persuade many evangelicals to support her nomination." Indeed, at an October 12, 2005, press conference, Bush told reporters: "People ask me why I picked Harriet Miers. They want to know Harriet Miers's background; they want to know as much as they possibly can before they form opinions. And part of Harriet Miers's life is her religion."
While some conservatives criticized the administration's focus on religion as a qualification for the Supreme Court, Focus on the Family founder and chairman James C. Dobson claimed on his October 12, 2005, radio show that his support of Miers was based in part on the fact "that Harriet Miers is an evangelical Christian, that she is from a very conservative church, which is almost universally pro-life." And according to Washington Post columnist E.J. Dionne, Sekulow said on the Christian Broadcasting Network's The 700 Club that the Miers nomination was "a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court."
After Miers's withdrawal, some conservatives emphasized the Catholic credentials of her replacement, Alito. In a November 4, 2005, op-ed supporting Alito's nomination, Republican Sen. Trent Lott (MS) suggested that as a Catholic, Alito was likely personally opposed to so-called "partial-birth abortion":
Yet, in another case involving the pro-abortion Planned Parenthood, he ruled that a state law banning partial-birth abortions was unconstitutional in light of a then recent Supreme Court decision because of a failure to provide exceptions for protecting the mother's health. An overwhelming majority of Americans opposes this horrible late-term abortion procedure as I assume does a Catholic son of Italian immigrants like Judge Alito. Yet, he obviously put aside personal beliefs in this case and ruled according to the law. That's what a conservative, strict constructionist jurist does. He bases decisions on law.
And in a November 6, 2005, column, Novak suggested that Alito's faith would yield political benefits for Republican Sen. Rick Santorum (PA):
The Alito nomination could help Sen. Rick Santorum's uphill fight for re-election in Pennsylvania. His Democratic opponent, State Treasurer Bob Casey, like Santorum is Catholic and pro-life and now will have to take a stand on the pro-life, Catholic Alito.
From the January 24 broadcast of ABC News' Nightline:
TAPPER: If Samuel Alito is confirmed to the Supreme Court, it will be the first time in American history five sitting justices will be Catholic: Alito, John Roberts, Clarence Thomas, Antonin Scalia, and Anthony Kennedy. A minority religion, a majority on the court. It tends not to be something people make an issue out of, at least publicly. But some liberals do have some concerns about such a Catholic court.
GREEN: There is some fear that they might, perhaps on some issues like abortion, carry out a kind of Catholic jurisprudence, you know, rather than reflecting a broader point of view.
TAPPER: As for the senators responsible for confirming them, their obligation includes not voting for nominees in any way because of their faith. It's right there in Article VI of the Constitution: "No religious test shall ever be required as a qualification to any office or public trust under the United States." Even though sometimes they raise the issue, as Chief Justice John Roberts found out in his hearing.
ROBERTS: My faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source.
TAPPER: So, does a Catholic majority on the court matter? Well, Terry [Moran, Nightline co-anchor], ultimately what might matter the most is that these things don't seem to matter much anymore.