Constitution prohibits religious tests for judicial nominees

Constitution says that “no religious Test shall ever be required as a Qualification to any Office.” While it's obviously not unconstitutional for conservative media to invoke Kagan's Judaism while criticizing her nomination, such comments are particularly noteworthy in light of the tradition of religious tolerance in this country, as exemplified by the Constitution's prohibition of religious tests for public office. Article VI of the Constitution states:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Conservative media invoke Kagan's Judaism in criticizing her nomination

Buchanan complains that with Kagan, Supreme Court will have too many Jews. In a column, Pat Buchanan wrote, “If Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats,” and added, “Is this the Democrats' idea of diversity?” From Buchanan's May 14 syndicated column (emphasis added):

Indeed, of the last seven justices nominated by Democrats JFK, LBJ, Bill Clinton and Barack Obama, one was black, Marshall; one was Puerto Rican, Sonia Sotomayor. The other five were Jews: Arthur Goldberg, Abe Fortas, Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan.

If Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats.

Is this the Democrats' idea of diversity?

But while leaders in the black community may be upset, the folks who look more like the real targets of liberal bias are white Protestants and Catholics, who still constitute well over half of the U.S. population.

Not in living memory has a Democratic president nominated an Irish, Italian or Polish Catholic, though these ethnic communities once gave the party its greatest victories in the cities and states of the North.

What happened to the party of the Daleys, Rizzos and Rostenkowskis?

And not in nearly half a century has a Democratic president nominated a white Protestant or white Catholic man or woman.

[...]

If Kagan is confirmed, the Court will consist of three Jews and six Catholics (who represent not quite a fourth of the country), but not a single Protestant, though Protestants remain half the nation and our founding faith.

Miranda raises concerns about Kagan's “background” in the “Jewish socialist culture in New York.” In a May 12 podcast for Accuracy in Media, right-wing activist Manuel Miranda suggested that Kagan comes from the “Jewish socialist culture in New York” and that there “is the question whether Elena Kagan still has that [sic] roots.” From the podcast:

MIRANDA: I think the real concern is, the question has to be, is Elena Kagan still a socialist? And the reason -- the reason I say that is because in her early writings, in her early life, in the formation of her political sense, it is pretty clear that she is an American socialist. She comes from that background. I grew up in New York, she grew up in New York. I'm very familiar with the sort of the Jewish socialist culture in New York, which has an enormous pedigree, has done wonderful things in promoting a way of life and developing American society, but at the end of the day is still socialist. And so there is the question whether Elena Kagan still has that [sic] roots.

In column contrasting Kagan with “ordinary people,” Kathleen Parker invokes the number of Jews on the court. In a nationally syndicated column that ran in The Washington Post, conservative columnist Kathleen Parker wrote, “More than half the country also happens to be Protestant, yet with Kagan, the court will feature three Jews, six Catholics and nary a Protestant. Fewer than one-fourth of Americans are Catholic, and 1.7 percent are Jewish.” Parker later added that Kagan, “a New York City girl who attended a prep school, Ivy League colleges and law school -- who once barred military recruiters from Harvard's recruitment office and was an adviser to Goldman Sachs -- can't be characterized as anything close to mainstream America”:

Then again, spending one's formative years walking past the infamously crime-riddled Murder Hotel en route to school, as Kagan did -- and, say, walking past the First Baptist Church to ballet class -- are not the same cultural marinade.

[...]

President Obama has made clear his desire to nominate justices who are in touch with “ordinary Americans.” He specifically mentioned “empathy” in choosing Sotomayor. Before Kagan's nomination, Obama said he wanted someone with a “keen understanding of how the law affects the daily lives of the American people.” He wanted a justice who, like retiring Justice John Paul Stevens, “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Enter Kagan?

Certainly New York City dwellers would argue that they struggle with ordinary concerns, just in a more dense environment. But New York, like other urban areas, tends to be more liberal than the vast rest of the country. More than half the country also happens to be Protestant, yet with Kagan, the court will feature three Jews, six Catholics and nary a Protestant. Fewer than one-fourth of Americans are Catholic, and 1.7 percent are Jewish.

One does not have to be from a rural Georgia backwater (Clarence Thomas), or the child of recently arrived immigrants (Antonin Scalia and Samuel Alito), to qualify as a justice, though it might help in claiming identity with ordinary people. One could even argue that it matters only that one regard the law with utter neutrality.

But the president adheres to the ordinary-people principle, and so the question must be asked: Does Kagan meet the standard? She may have other qualifications, including her willingness at Harvard to invite conservative scholars to her faculty. But a New York City girl who attended a prep school, Ivy League colleges and law school -- who once barred military recruiters from Harvard's recruitment office and was an adviser to Goldman Sachs -- can't be characterized as anything close to mainstream America.

Either Obama may want to tweak his operating narrative -- or geography may well be Kagan's wound.

Anti-Defamation League, Lautenberg slam Buchanan for comments

Anti-Defamation League: Buchanan's comments are “bigoted and unacceptable.” Responding to Buchanan's comments, Anti-Defamation League National Director Abraham H. Foxman stated: "Pat Buchanan is a recidivist anti-Semite who never misses an opportunity to show his fangs. His remarks about the Jewish background of Elena Kagan and the religious makeup of the Supreme Court are bigoted and unacceptable in a pluralistic society such as ours." He added, “Kagan's nomination for the Supreme Court should be considered on its merits. She is a highly qualified candidate for the judiciary, an exemplary Solicitor General and a great legal mind.”

Sen. Lautenberg: Buchanan's “outrageous” comments make it sound like he “longs for the days when religious quotas kept people out of high-ranking positions in government.” From Sen. Frank Lautenberg's (D-NJ) statement responding to Buchanan's column:

“It is outrageous that Mr. Buchanan is using Elena Kagan's religion as kindling to enflame opposition to her nomination to the Supreme Court,” stated Lautenberg. “Elena Kagan was chosen by President Obama because of her ability and knowledge, and Mr. Buchanan's comments undermine her significant legal achievements. It sounds like Mr. Buchanan longs for the days when religious quotas kept people out of high-ranking positions in government.”