Are a judicial nominee’s "deeply held religious beliefs" a legitimate area of exploration for legislators charged with the advice and consent function? During recent confirmation hearings New York Senator Charles Schumer began pursuing this novel line of inquiry --apparently based on the belief that the first amendment not only creates a wall of separation between church and state (words not found in the Constitution) but also establishes special hurdles for individuals who take their faith seriously.
Naive observers might think that the primary qualification for judicial nominees would be their ability and willingness to interpret the law fairly. But as courts increasingly take upon themselves legislative prerogatives, a candidate’s philosophical views loom ever larger to politicians charged with the responsibility of deciding who is and who isn’t "qualified" to sit on a federal bench.
Under Schumer’s view of jurisprudence, constitutional temperaments seem to be compatible with deeply held views of all types--just not with deeply held religious views. Thus, even though more than 90% of Americans claim to believe in God, as far as judicial reflection is concerned, only god-free logic is clearly acceptable.
Imagine, for example, a judge with deeply held positions that are at odds with the vast majority of Americans when it comes to the age of sexual consent. Imagine that the judge’s name is Ginsburg. Would the philosophical roots of her views make any difference to Schumer and associates? Apparently not. All that would matter is that she came to her "progressive" views without relying on any religious convictions.
Now consider a judge with deeply held religious views that are roughly congruent with ideas embraced by at least half the country. Imagine the judge’s name is Roberts. Does the religious basis of his moral convictions become a major issue? Apparently so--since his religious beliefs trigger concerns arising from an expansive rendering of the First Amendment establishment clause.
In sum, secular nominees are OK, theists are questionable, and true believers are out of court. Ironically, this rule makes the following premise judicially illegitimate: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."
According to Jefferson, governments are founded to secure the aforementioned rights. But according to Schumeristas, judges in that government fall under a cloud of suspicion if they employ this traditional concept of natural rights when pondering the resolution of legal questions. (Over a decade ago Justice Thomas, in his confirmation hearing, was given grief by Senator Biden for subscribing to these same "self-evident" truths that undergird the Declaration of Independence.)
Judges are entitled, it seems, to reason based on penumbral emanations plucked from thin air. They are also entitled to patch together decisions under the philosophical banner "the greatest good for the greatest number"--a benign utilitarian phrase that Princeton’s Peter Singer employs to justify infanticide. But they are not entitled, by Schumer’s lights, to reason based on the axiom that life derives from God--at least not if the conclusion to that train of thought violates some "deeply held" abortion plank in his party’s platform.
This new approach to jurisprudence depicts people of faith as irrational, eccentric, and narrowly sectarian--persons whose aberrant ideas must be quarantined to prevent public contamination. Meanwhile, non-religious minds (or intellects that have been scrubbed clean of religious pollutants) are portrayed as legitimate jurists.
This view would come as a surprise to George Washington, whose Farewell Address contains these anti-Schumeristic observations: "Of all the dispositions and habits that lead to political prosperity, Religion and Morality are indispensable supports.... And let us with caution indulge the supposition that morality can be maintained without religion."
Removing religious symbols and rituals from the public square was a giant first step on this slippery suppositional slope. That policy made it possible to stigmatize as theocratic all public officials with strong religious views--especially judges. If both these strategies prove successful, the only persons deemed qualified to rule in our still religious nation will be those who are indifferent or hostile to the beliefs held dear by a substantial majority of citizens. The secular sieve that cleansed the public square of vital religious expression will have accomplished the same feat in the halls of government.