The political advantages of Catholic justices.

How you look at things.
Nov. 1 2005 1:46 AM

Why Catholics?

The political advantages of Catholic justices.

Three hours after President Bush nominated Judge Samuel Alito to the Supreme Court, a conservative "Catholic-based advocacy organization" fired a warning shot at liberals. "Given the likelihood of a vigorous debate, we remain steadfast in our insistence upon a fair and dignified process free of any attack on Judge Alito's Catholic faith and personal beliefs," said the group's president. "Early attacks by left wing interest groups are particularly worrisome."

As evidence of the early attacks on Alito's faith, the group pointed to ... nothing. The only basis for alleging an anti-Catholic inquisition was the uproar over Alito's defense of abortion restrictions. This is the GOP's new victim shtick: Nominate pro-lifers to the courts; brag that they're simply upholding abortion laws favored by a majority of voters; and when liberals complain, accuse them of attacking a religious minority.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

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A decade ago, when Bill Clinton was president, Ralph Reed and the Christian Coalition pioneered this shtick. "Anti-Christian bigotry," they cried at every run-in of church and state. I can't proselytize my employees? Anti-Christian bigotry. I can't pray over the school public-address system? Anti-Christian bigotry. But the shtick rang hollow, because 80 percent of the country was Christian. Bigotry against a powerful majority made little sense. As conservatives captured power—Congress in 1994, the White House in 2000—the victim pose grew less and less plausible.

Not to worry. Two years ago, Republicans found a new way to play victim. They were trying to get Bill Pryor, the attorney general of Alabama, confirmed to the 11th Circuit Court of Appeals. Pryor had called Roe v. Wade an "abomination" that had led to "slaughter." Such rhetoric, according to Democrats, suggested that Pryor was incapable of subordinating his moral convictions to constitutional law. A well-connected conservative lobby, the Committee for Justice, fired back with ads depicting a warning on a courthouse door: "Catholics need not apply." The ads accused senators of attacking Pryor's " 'deeply held' Catholic beliefs."

In truth, no opposing senator had mentioned Pryor's Catholicism. The inference was drawn purely from questions about his sharp moral rhetoric. Republican senators took the campaign further, suggesting that criticism of judges who supported abortion restrictions was inherently anti-Catholic. Unlike the old charge of anti-Christian bigotry, anti-Catholic bigotry sounded plausible. For one thing, less than one-fourth of the U.S. adult population was Catholic. For another, Catholics have historically been excluded from high office in this country. Of the first 54 U.S. Supreme Court justices, only one was Catholic. Not until the 1890s did others arrive, and not until 1960 did we elect the first Catholic president. Twenty years ago, only one justice was Catholic. The rest were Protestants.

In 1986, all that began to change. President Reagan appointed Antonin Scalia and Anthony Kennedy to the court. The first President Bush appointed Clarence Thomas along with David Souter, an Episcopalian. President Clinton appointed two Jews: Ruth Bader Ginsburg and Stephen Breyer. The second President Bush appointed John Roberts and nominated Alito. If Alito is confirmed, Catholics will hold five of the court's seats, and the Protestant contingent will have dwindled from eight to two. The notion that bigotry is keeping Catholics off the court is becoming numerically preposterous. Politically, that's no accident. Catholic voters have become the top target of Republican courtship.

At the same time, the Catholic justices appointed in the last two decades (I'm excluding William Brennan, who was appointed nearly 40 years ago) have become the court's most reliable votes for abortion restrictions. In Webster v. Reproductive Health Services (1989), Ohio v. Akron Center for Reproductive Health (1990), Hodgson v. Minnesota (1990), and Rust v. Sullivan (1991), Scalia and Kennedy upheld the restrictions in question. In Planned Parenthood v. Casey (1992), Scalia and Thomas voted to overturn Roe. Kennedy thwarted them, but this was the only major case in which any of the three justices disappointed pro-lifers. In Stenberg v. Carhart (2000), all three voted in vain to uphold a ban on "partial-birth" abortions. In the next year or two, when that ban (now in federal form) returns, it will probably be considered by five Catholic justices instead of three. And judging from the records of Roberts and Alito, it will probably be upheld.

I'm not suggesting all Catholics vote a certain way, any more than all Jews or Protestants do. You can factor out a lot of the discrepancy based on sponsorship: Since 1960, all four Jews appointed to the court have been nominated by Democrats, while all five Catholics have been nominated by Republicans. But even among the Republican-nominated appointees, there's an acute Catholic-Protestant gap. Since the Nixon years, Republicans have appointed seven Protestants (Warren Burger, Harry Blackmun, Lewis Powell, William Rehnquist, John Paul Stevens, Sandra Day O'Connor, and Souter) and five Catholics (Scalia, Kennedy, Thomas, Roberts, and Alito). Six of the seven Protestants have defied pro-lifers. Only one of the five Catholics has done so, and in only one of six major cases.

Of course, neither Roberts nor Alito has voted on abortion in the Supreme Court. But each has made his position clear as an appellate judge or advocate. If you're a pro-lifer, it's hard to escape the feeling that among the potential nominees in a Republican administration, Catholics are more reliable. Maybe it's the frank language of moral revulsion in abortion-related opinions by Thomas and Scalia. Or maybe it's the fact that Roberts' wife worked with Feminists for Life. Or maybe it's the fact that Alito's mother tells reporters, "Of course he's against abortion."

Whatever it is, Catholics are clearly in vogue as reliable choices of this White House. Among the eight names circulated on Supreme Court shortlists this year, I count three known Catholics. One got the first open seat; another is getting the second. If you're pro-life, the fact that these nominees are Catholic doesn't mean they'll vote the way you want. But it does make it easier to label anyone who challenges their abortion writings a bigot—and to cash in that label at election time.

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