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A Kagan, not a Stevens
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?
After Gerald Ford was sworn in as vice president of the United States on December 6, 1973, he showed himself to be a humble and decent person by his remark, "I am a Ford, not a Lincoln." Nothing in Ford's tenure as vice president or president caused anyone to doubt the truth of that remark.
Gerald Ford acknowledged he could never live up to the standards of a previous president whose last name, like his, was a car. Ford would have looked better comparing himself to his predecessor. After Ford was sworn in as president, I wish he had remarked, "I am a Ford, not a Nixon." Everyone would have recognized the implication that Ford's presidency would be an honest one, with no need for him to try and convince the country that he was not a crook.
I think Gerald Ford's finest presidential decision was his choice in 1975 of John Paul Stevens for the Supreme Court of the United States. And though we know little about Elena Kagan, she seems like a decent person and probably better on church-state separation than most sitting justices; however, Kagan is definitely not a Stevens, one of the finest United States Supreme Court champions for separating religion from government.
Justice Stevens said, "Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundations of our democracy." (Zelman v. Simmons-Harris, dissent, 2002).
Stevens opposed government display of sectarian symbols on public property and any state subsidies to religion. Kagan, as U.S. solicitor general, argued in favor of keeping a war memorial cross in place on federal land in the Mojave Desert. However, she can be given a pass for this church-state entanglement, since it was her job to defend the government in the case.
A more troubling concern occurred during her confirmation hearings for solicitor general in 2009, when she denounced a 1987 memo about faith-based groups that she had written while serving as a clerk for Justice Thurgood Marshall. Faith-based pregnancy care centers, she thought at the time, would not be able to counsel pregnant teenagers without injecting their religious beliefs (which sounds like a reasonable position to me). Unfortunately, at the 2009 hearing she said presuming a religious organization would use a grant of this kind in an impermissible manner is "the dumbest thing I ever heard."
Kagan's 1987 memo agreed with the position of Supreme Court Justice Stevens, who continues to maintain that same position. So now Kagan essentially is calling retiring Justice Stevens dumb. This is very troubling, indeed.
Should Kagan be confirmed, the Supreme Court would have six Catholics and three Jews. Much is now being written about there being no Protestants. As a child and young adult, I used to take pride in what was called the "Jewish seat" (Felix Frankfurter, followed by Arthur Goldberg, followed by Abe Fortas). Now, I would like to think, we have taken steps toward picking Justices without regard to religion. (Interestingly, we talk more about a Justice's religion than the Justice's religious beliefs.)
I've often wondered how many of our Justices, past and present, have been atheists. Unfortunately, presidents in both parties today would be reluctant to nominate an otherwise-qualified acknowledged atheist, and the Senate would be unlikely to confirm one. I hope for a time in the not-too-distant future when that will no longer be the case.
By
Herb Silverman
|
May 10, 2010; 4:34 PM ET
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Posted by: mono1 | May 12, 2010 1:51 AM
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What do you suppose would happen if the pres nominated an American Muslim for the Supreme Court?
Posted by: LAltman | May 11, 2010 11:02 PM
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separation between the church and the state is another opium of the mass.
the people by the people and for the people *DO* take their religion and ideology to the state officialy and unofficialy.
secularism died for your sin ,viva la republique.
Posted by: mono1 | May 11, 2010 1:48 PM
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It should worry all Americans, not just non-theists, for a SCOTUS nominee to display such casual views toward religion in government, particularly when her pre-nomination history shows a more separationist bent. One wonders whether Kagan believes theocratic opinions are a requirement for confirmation.
Posted by: maryellensikes | May 11, 2010 12:55 PM
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It's an obvious choice for Obama to choose Kagan: she's a two-fer, both Jewish and a woman. Her lack of true judicial experience means she has no real court precedents for the Senate confirmation committee to look to, although her academic opinions are there for all to see. However, academic opinions aren't binding like legal decisions, so she can easily say "I've changed my mind" to suit the committee. Her turnabout on faith-based institutions is such an example, regardless if she was paid to do so.
Kagan, however, won't pass muster. She's the rebound girlfriend/boyfriend and will be tossed under the Metro by the committee and Obama, who's testing the waters for his preferred nominee to come.
Obama, if he really wanted to balance the court, would nominate a black, female Protestant and get the trifecta that would further the appearance of a balanced court as it relates to population, with it then having 3 religions, 3 women, 2 blacks, 1 Hispanic, and a partridge in a pear tree. Of course, if she were lesbian, now he's got a four-fer, and adding back a demographic lost when Souter retired. (Oh, come on people. Be real and acknowledge he's gay even if he doesn't.) Throw in a disability and you have a 5 star nominee. Who could vote against such a person?
In truth, Obama does throw atheists a bone in his statements, but nominating someone whose religion is none, or who doesn't go to church/temple or make his/her religion a public display, would be a no-brainer if he truly wanted to change the make-up of the court. And it could be done. Not going to church/temple isn't the same as being an atheist, although it could be inferred. Will we see such? A bold step indeed.
Posted by: TomMelchiorre | May 11, 2010 12:03 PM
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as a muslim i do not mind at all nominating a devout christian or devout jew or devout muslim as long as they apply the idealism of the textbook that they carry,
they all beleive in the existance of the creator god,they will stand aganist wickdness and mischeviousness.
here is an example worthy of alertness and attention,
saint g bush the democraz invaded iraq carrying the 2 bible of the united state of america
1-the juchristian bible
2-the democratic constitutional bible
if g bush was devout to the christian bible and the constitution bible the invasion and oppressing people by the people and for the people could been prevented and shyed off.
i,l vote for the amalgamation between the church and the state and get the best out of it,since the separation proved fiasco if not another pacifier and opium of the republic.