SHOULD JUDICIAL NOMINEES' RELIGION MATTER? Religion And Judging For Brandeis, Brennan, And Blackmun

By EDWARD LAZARUS

Tuesday, Jun. 26, 2001

One of the beauties of being a regular columnist is the chance it affords to reflect on previous writings and readers' reactions to them. For instance, in last week's Washington Post, I published an Op Ed explaining my views on how the Democratic Senate should approach Bush's nominees for federal appellate court judgeships. Readers' reactions to that piece brought up, for me, several important, separate issues: Do a potential judge or Justice's religious views matter? And if so, how should one take account of them in assessing nominees?

An Op Ed Raises a Reaction on Religion

In a nutshell, I argued in the Op Ed that the legal world is basically divided into two sharply differing ideological camps, and that the Democrats, on purely ideological grounds, are entitled to reject all Bush's conservative nominees until the Administration compromises on its appointments to those federal courts of appeals that presently enjoy an even or near even ideological balance among their members.

I also expressed my hope that the Democrats would do this honestly and forthrightly, by declaring that they were voting to reject Bush's nominees, because the values and methodologies espoused by conservative nominees were wrong — rather than guising their objections in the form of challenges to qualifications or judicial competence.

To test my approach, I applied it to the best of Bush's ideological nominees, Michael McConnell. McConnell is a highly regarded constitutional scholar, a fine advocate, and, from all accounts, a very decent man. He also departs from current conservative thinking on some important points. Nevertheless, in my view, two critical aspects of McConnell's approach to law would justify Democratic opposition.

First, McConnell is an "originalist" — that is, he endorses a highly suspect interpretive method under which judges attempt to ascertain drafters' intent even if it is out of step with contemporary life. Second, as I put it in the Post Op Ed, "McConnell is very much on record, moreover, on another hot-button issue: An avowed fundamentalist Christian, he is arguably the legal world's leading advocate for lowering the wall of separation between church and state."

I did not at all mean to suggest that McConnell should be rejected for his religious beliefs. Rather, I wanted to suggest that he should be rejected for his illiberal opposition to church/state separation — a legal position quite separate from his religious beliefs, though one that may be an outgrowth of them.

Why Justices' Religious Views Matter

Historically, of course, religion has played a significant — and not always salutary role — in judicial appointments. Some of Louis Brandeis' brethren would not even speak to him on account of his religion.

Other Justices, too, found their religious beliefs played a role. Dwight Eisenhower selected William Brennan in part because he was a northeastern Catholic — and thus appealed to a constituency that Ike apparently considered politically important.

It turned out that Brennan's religion did matter on the Court — but in an unusual way. When Justice Harry Blackmun was drafting Roe v. Wade and considering such intrinsically theological question as when life begins, he was especially interested in and concerned about the views of Brennan, the Court's sole Catholic at the time.

The Tension Between Bigotry and the True Relevance of Belief

These examples show that religion has mattered in both nomination and decision making — and in both deeply objectionable and unobjectionable ways. At bottom, the difficulty with the role religion plays in public life lies in trying to reconcile two competing truths.

First, religious bigotry has played a sustained and unfortunate role in American politics. Second, a person's religious background and beliefs do matter, in that they help shape a person's values, ideals, and perspective. Thus, while McConnell's fundamentalist religion is in no way, shape, or form a reason to reject him, it doubtless does relate to the person he is and to the views he holds —but the latter, not the former, are what matters for purposes of his nomination.

It seems naïve to me to think that religious beliefs can be entirely divorced from the process of judging, particularly in the highly value-laden area of constitutional law. I have little doubt, for example, that Justice Blackmun's support for a high wall between church and state was based on how seriously he took his own religious beliefs. It was his conviction that government entanglement with religion only diminished the strength and power of religious institutions — institutions he cared very much about preserving.

Similarly, Justice Clarence Thomas, despite a common racial heritage, shares few, if any, legal beliefs with the late Justice Thurgood Marshall. Like race, religion may inform judges and Justices' views, but it hardly determines them.

Is it fair to say that a person's race or religion inevitably influences his or her jurisprudence? Probably. But can ironclad predictions about judicial philosophy be made on this basis? Certainly not.

A Mea Culpa

With the issue so starkly framed, I realize that I made an error in even rhetorically linking McConnell's fundamentalist beliefs with his First Amendment views.

Even if McConnell's religious beliefs helped shape his approach to the Constitution's religion clauses (and it would be perfectly natural if they had), it is his approach to the Constitution — not the role of his religion — that is appropriately at issue in his confirmation. Mea culpa.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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