The Catholic Double Standard

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.'"

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.

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.

"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."

"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 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 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."

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, that would be something to celebrate. 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.