Diversity is good; Religious tests for office are not
Q: If Elena Kagan is confirmed to replace retiring Justice John Paul Stevens, the Supreme Court would for the first time in its history be without a justice belonging to America's largest religious affiliations -- the Protestant traditions. If Kagan is confirmed, six of the justices will be Roman Catholic and three will be Jewish. Should the Supreme Court be more representative of America's religious traditions? Does religion matter in the mix of experience and expertise that a president seeks in a Supreme Court nominee?
A paradox. The most difficult political decisions are those that pit valid moral principles in tension with each other. This question poses just such a tension -- in no small measure because religious communities have both religious and ethnic aspects to their identities.
On the one hand, each nomination or election ought to be made on the basis of the nominee's qualifications, abilities and strengths. Categories our nation eschews as grounds for discrimination - race, religion, national origin, gender, ethnicity, age and (increasingly) sexual orientation - ought never disqualify a person from appointed or elected office. Further, religion has been an area of special concern since the founding of our nation. Only religion has a non- Establishment Clause and only religion has an explicit constitutional ban as a test for public office. That bars the President from making religion a defining requirement when choosing a nominee.
On the other hand, our institutions benefit when we seek diversity of experiences, skills, and backgrounds. The desire to achieve this diversity, which greatly benefits our workplaces and our universities, is one basis for affirmative action among qualified candidates. The Supreme Court is no exception - diversity on our nation's highest Court enriches its perspectives and deliberations.
And diversity has another, often overlooked, benefit as well. As the final arbiter of constitutionality, the Supreme Court often must make painfully difficult decisions that can, potentially, be dangerously divisive and its strength depends on the acceptance of those decisions in American life. When groups are historically unrepresented on the Court (as African Americans were for nearly two centuries), it makes it more difficult for them to feel that the Court can understand their experiences, needs, fears and aspirations.
With only nine Supreme Court Justices, however, it is impossible for the Court to be truly representative of America's diversity at a given time, and the pursuit of any kind of diversity should never trump qualification. (Indeed, it is the larger legislative branch of government to which we look as being more representative of the diversity of America.) Further, diversity itself is an amorphous concept: For example, Revs. Pat Robertson and Jesse Jackson are both Protestants - indeed both Baptists - but neither would likely take comfort in being represented by the other in decisions the High Court would make. Justices Thurgood Marshall and Clarence Thomas, both African Americans, could not be more different in their approach to the law. Nonetheless, as the Court makes difficult decisions in the future, a long period in which the majority religious community is unrepresented on the Court may well make those decisions more difficult for some of the American public to accept.
Hence the paradox.
Elana Kagan's Jewishness should not have been a consideration in her appointment. And evidently it was not -- neither for the President nor, encouragingly, for the public as it has so far evoked little comment or attention. However, should the absence of a Protestant turn into an extended condition of many years, it might well become an issue in American public life, creating distance between the public and the Court - and that would be a different kind of concern. The American people must have faith in and feel a connection to the Court in order for the Court's credibility, autonomy and authority to endure.
For the short run, instead of focusing on the nominee's religion, all those who care about religion should note one key area critical to religious liberty that could shift with Elana Kagan's confirmation. Justice Stevens, known as a courageous and effective advocate for a robust interpretation of our fundamental rights, disappointingly sided with the majority to curtail the Court's application of the free exercise clause in the controversial 1990 Oregon v. Smith decision. This was arguably the worst decision for religious freedom in the Court's history, opposed by every major religious faith group in America.
Those across the nation who, during the 1990s, worked to restore higher levels of protection for religious freedom by legislation and executive order, may be encouraged to know that Elena Kagan (who was then serving in President Clinton's White House) was a wise, strategically savvy and seemingly sympathetic interlocutor for the White House to such efforts. And while we should be wary of extrapolating from an attorney's role in a political capacity and how he or she would rule on the Court, there may be hope that Ms. Kagan's elevation to the Court could provide the fifth vote necessary to overturn this disastrous decision. (This would depend as well on Justice Alito sharing the views of Justice Sandra Day O'Connor, the Justice he replaced. She voted for the outcome of the majority but argued for retaining the traditional expansive view of the free exercise clause.)
And restoring a robust free exercise clause should reassure people of all religious traditions that they can have faith in the Supreme Court to live up to our nation's highest ideals.
May 14, 2010; 9:01 AM ET
Save & Share:
Previous: Respecting the cross and the law | Next: No 'religion test' for office, but nominees should be quizzed
Posted by: bdunn1 | May 14, 2010 3:52 PM
Report Offensive Comment
The comments to this entry are closed.