WSJ: Robert George – ironic judicial religious test double standard

The hearings on Judge Sonia Sotomayor are occasions to get lots of questions out in to the public square.

One of those issues is the war on religion in the public square.

In the Wall Street Journal there is a piece by William Mcgurn with Robert George

The Catholic Double Standard
Why was Samuel Alito’s Catholicism so much more discussed than Sonia Sotomayor’s?

JULY 14, 2009


In opening yesterday’s Judiciary Committee hearings on Sonia Sotomayor’s nomination to the Supreme Court, Chairman Pat Leahy (D., Vt.) alluded to the religious prejudice that has too often intruded on the process.

The first Jewish nominee, he noted, had to answer "questions about the Jewish mind and how its operations are complicated by altruism." The first Catholic nominee, he added, "had to overcome the argument that, as a Catholic, he’d be dominated by the pope."

"We are," Sen. Leahy declared, "in a different era."

Maybe. It’s true that if Ms. Sotomayor is confirmed there will be six Catholics on the Court — a higher percentage than almost any Notre Dame starting lineup of the past three decades. It’s also true that notwithstanding a few scattered references to this fact, for the most part the judge’s religion has been greeted, as a USA Today headline put it, with a "yawn."

How different from just a few years ago. Back when the nominee was Sam Alito, talk was about the "fifth Catholic" on the bench. Eleanor Smeal, president of the Feminist Majority, complained that "with Alito, the majority of the Court would be Roman Catholics."

Before that it was John Roberts. In the run-up to his confirmation, the Los Angeles Times ran a piece headlined "Wife of Nominee Holds Strong Antiabortion Views." Though the article conceded that a "spouse’s views normally are not considered relevant in weighing someone’s job suitability," plainly these were not normal times. Mrs. Roberts, the paper pointed out, had worked for a group called "Feminists for Life," and was characterized as an "extremely, extremely devout Catholic."

And let’s not forget Bill Pryor, whose Catholicism came into question when he was nominated for the 11th Circuit Court of Appeals in 2003. Back then, Mr. Leahy’s colleague, Charles Schumer (D., N.Y.), put his worries about Mr. Pryor’s faith this way: "His beliefs are so well known, so deeply held, that it’s very hard to believe — very hard to believe — that they’re not going to deeply influence the way he comes about saying, ‘I will follow the law.‘"  [But it is somehow okay for a "wise Latina" to bring her background to the bench.]

It’s possible, of course, that Democrats and their allies in the media and activist community no longer regard Catholics with the suspicion they did back when President George W. Bush’s nominees were up for consideration. More likely, the relatively soft reaction to Ms. Sotomayor’s Catholicism is because of a calculation that when it comes to hot-button issues such as abortion or gay marriage, she doesn’t really believe what her church teaches[I am sensing a theme… "Cattolica ma non troppo"]

Robert George, McCormick Professor of Jurisprudence at Princeton, says the Sotomayor hearings highlight a glaring double standard about how the Catholicism of judicial nominees is treated — and the great irony this treatment exposes.

[NB] "According to one theory of jurisprudence," says Mr. George, "the judge may not bring his own moral beliefs or personal feelings to bear on his rulings on what the law is. This is the view held by people like Scalia and Alito and Roberts."

This means that a judge who is personally pro-life can uphold a pro-choice law — and a judge who is personally pro-choice can uphold a pro-life law. What matters is the law, not the personal feelings. When judges follow this path, they take some of the heat out of culture wars. That’s because those who want to change the law — pro-life or pro-choice — have to do it the way our Founders intended: through their elected representatives.  [The usual depiction of justice we find in the American judicial context is that Justice personified is blindfolded.]

"The other theory of jurisprudence," the professor told me, "holds that the judge has a responsibility to bring his or her moral beliefs to cases. This is famously defended by scholars such as Ronald Dworkin, and practiced by judges such as William Brennan and John Paul Stevens."

"Among the many problems with this view [the second view] is that it leads inexorably to the politicization of the judicial process. If someone expects us to accept this theory as a legitimate judicial philosophy, then he or she has to be prepared to answer questions about what his or her moral beliefs or personal feelings are — and where they come from."

"Yet here’s the irony. The same people who feel no compunction in trying to use the Catholicism of an Alito or Pryor to raise suspicions about their suitability then cry foul when anyone demands to know the basis of the moral convictions and personal feelings of someone that a liberal Democratic president is trying to place on the Supreme Court." [Yes… that is ironic, isn’t it?]

If the indifference to Ms. Sotomayor’s Catholicism were truly a sign of a new respect for the "no religious test" provisions of the Constitution, [and it isn’t] that would be something to celebrate. [but, is isn’t.] But in the unlikely case that this "wise Latina" ever comes to see the legal wisdom of overturning Roe and returning abortion to the democratic process, we’ll be reading a very different story.

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  1. Matthew says:

    I tell you what this change is a sign of–the decline of Catholicism! Would that we were so robust, so firm, such a countersign to the ‘world’, and so willing to let our theology inform our jurisprudence (and everything else) that secularists, atheists, and Protestants feared our getting on the bench.

  2. Rob Cartusciello says:

    Fr. Richard Neuhaus poignantly observed that in certain circles, “the only good Catholic is a bad Catholic.”

  3. This is nothing new and should come as a suprise to no one.

  4. Correction:

    This is nothing new and should not come as a suprise to anyone.

  5. Woody Jones says:

    Tonight I shall consult my books at home, especially Carl Schmitt’s “Constitutional Theory” and Donoso Cortes, and get back to you all on this one. The whole topic is a very interesting one. Note that i did not mention US writings on the subject, as I think they are mostly written with the prevailing liberal-constitutional bias.

  6. Pete Jennings says:

    The enemies of the church instinctively recognize persons such as Alito, who live up to their Catholic identity, as threats to their agenda. One wonders what Sotomayor herself would make of the fact that the same folks do not feel threatened by her Catholicism. Clearly, they can tell the difference. When Fr. Z says orthodox Catholics need to reclaim the former sense of Catholic identity in the public square, he is right on.

  7. anson says:

    Having been raised with hHispanics, I can tell you that with them it is bloodline first. Religion, country and co-existance with non-Hispanics is way down the line on their priorities. Our Mile-High Archbishop seems not to notice this.

  8. ed says:

    Well Anson make an appointment with him and explain it.

  9. ed says:

    Maybe somebody should get Mrs Sotomayor’s mother address so we can write to her to try to influence her daughter and remind her of all the temporal blessings GOD has given her family. (GOD seems to give more temporal blessings to those who ignore him or fight him from what i see and even the Little Flower saw that when she ironically stated that the way he treated his friends she was surprised he had any)

  10. Tominellay says:

    We have a problem in our country when justices legislate…that’s simply not their proper role. An unfortunate result of an expectation that our justices will legislate, is that people attempt to use government force as a weapon, against other people. Sotomayor’s nomination seems dangerous to me. I’m for principled, strict constructionists on the bench, like Thomas and Alito.

  11. ed says:

    Matthew you cant be a sign to the world when you have a pastoral policy of ecumenism which gives credence to these false sects man created using JESUS’s name and distorting his true teachings. If the Pope Bishops and priests were teaching Extra Ecclesiam Nulla Salus (Outside the Church NO Salvation)which has been dogmatically defined many times and stopped with this silly ecumenism which aint working anywhere maybe the phony Catholics and there are loads of them wouldnt be able to proclaim themselves Catholic while they spit at JESUS’s teachings. JESUS said if you love me you will keep my commandments ,these folks love their own intellectual far far more than ever loving JESUS.

  12. ed says:

    Tominellay please get your head out of the “mythical” college classroom. The fact is once the Democrats get the 5-4 majority the Constitution will mean what they say this is already happening at every other legal level. Its power their after not justice , changing America into an amoral land where all morals are sweep away except those which protect their power.

  13. DarkKnight says:

    Well, Sotomayor is old enough to have received some authentic teaching at least as a small child.

    With any luck, she’ll have a Pauline experience AFTER she’s safely confirmed and swing 180 degrees from the course expected by the president. It’s happened any number of times in the past, as soon as they get their black robe they run to the other side of the playing field. Unfortunately, it happens more often to Republican appointees, but I remain hopeful. I just don’t hold much hope.

  14. Redfeather says:


    I may be mistaken, but I think it was Teresa of Avila, and NOT the Little Flower aka (Therese of Liseux) who said that bit about being surprised God had any friends at all.

  15. mbd says:

    I expect that Sotomayor’s votes on the Court will not disappoint her proponents. The effect of this appointment may, however, bring a blessing in disguise. In the interpersonal relations on the Court, her abrasive personality may just alienate the one vote on the Court that both sides need and court – Anthony Kennedy. On the Second Circuit, she had great success in alienating several of the more moderate judges.
    In his early years on the Court, Justice Scalia was rather harsh and dismissive in his comments in conference to the opinions and reasoning of Justice O’Connor. Many believe that this was a major factor in pushing her from the more conservative stance of her first years on the Court, and led to her joining the more liberal wing of the Court on many votes in her later years. Sotomayor’s inability to win friends and influence people may make it difficult not only for her but also for Stevens, Breyer and – while she remains on the Court – Ginsburg to win Kennedy’s vote to their position. Interestingly, in Kennedy’s majority opinion in the Ricci case, his comments on the procedure followed in the Circuit (where Sotomayor was one of the two judges on the panel in the majority)suggest the raising of his judicial eyebrow.

  16. Andreas says:

    Spero hanc “latinam” sapientem scire latine loqui.

  17. Greg says:

    Fr. Z,

    I agree with Professor George’s assessment wholeheartedly. As Senator Graham pointed out at the hearings yesterday, these opportunities to question a Supreme Court nominee are nothing more than a chance for members of both parties to espouse their ideas.

    However, in pondering a Catholic lawyer/judge’s responsibility, I do have a question. Assuming that Scalia, Roberts, and Alito are more faithful to the Church than Sotomayor, can those justices knowlingly allow a law of the US (ie. Roe v Wade) be allowed to stand if given the opportunity to overturn it – even if the overturning of such is in violation of American law and “precedence”? I’ve heard Scalia say that abortion/gay marriage can not as the Constitution is currently written be deemed a right – and as such he has been able to form his opinions without violating Church teaching so far. He further states that if the American people want it, the correct forum is to pass legislation that makes it legal. Then he would have no choice but to enforce that law. If one’s only goal in life is to reach heaven, can a faithful Catholic judge use the “objective arbiter” approach excuse to allow immoral laws contrary to Church teaching and natural law to stand? Should a faithful Catholic justice be willing to be discredited in the eyes of the American legal system by taking the opportunity to overturn these laws? If such a situation comes to be, would such a justice have no other choice but to resign his post?


  18. rosebudsal says:

    I am going to have to disagree with Anson up above regarding Hispanics and putting bloodline before religion. The way I was raised, religion and culture went hand in hand. Spanish Culture and Spanish Catholicism were equally important. You couldn’t have one without the other. Also, where I grew up, three cultures have lived together for generations.

    I don’t think Sotomayor’s religion is making the news for whatever reasons, probably because she doesn’t practice her faith and to the mainstream media that makes her acceptable. To the people who practice, that makes her a bad Catholic. She probably doesn’t adhere to all the Church teaches, but I don’t think she’s really ever stated anything about her religious beliefs so we don’t know. Religion is also not the focus because they are playing up her being a Latina Woman, which I find interesting. I’m Hispanic, but don’t use the term Latina to self-identify. I also don’t relate to her experiences growing up in New York. Hispanics and Latinos are so different across the country. We may be one big minority group but we are nothing alike. I’m Catholic, it is my religion, which I practice, but it’s also part of my culture, history and tradition.

    Don’t know if this comment helped or made sense.
    Maria in Santa Fe

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