Bench Memos

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Are Senate Democrats Anti-Catholic Bigots?


The question has become even more interesting with that scoop by Washington Times reporter Charles Hurt Kathryn
mentioned earlier.

Hurt induced George Washington University law professor Jonathan Turley to divulge his sources for a column in yesterday’s Los Angeles Times, in which Turley reported that liberal Democrat U.S. Sen. Dick Durbin (D., Ill.) had grilled Supreme Court nominee John Roberts privately last week about his Catholic faith and what he would do “if the law required a ruling that his church considers immoral.”

The sources for the Durbin-Roberts exchange, Turley said, were . . . Senator Durbin himself and his press secretary, Joe Shoemaker. But Shoemaker insists that Turley is lying.  He says Durbin asked no such question.

Regardless of how this little spat shakes out, one thing is certain: Liberal pressure groups and Democratic senators, including Durbin, have long sought to impose a litmus test for federal judges, and especially Supreme Court justices.  Men and women of Christian, particularly Catholic, faith need not apply.

Senate minority leader Harry Reid (D., Nev.) needs to clarify publicly where his team is on this issue.

Let’s put aside the fact–and it is a fact–that no one can conjure up even a hypothetical scenario under which the United States Constitution contravenes the teaching of the Catholic Church.  It has not happened yet in our country’s history, and it’s not going to happen in the future.

The main point is:  President Bush and Judge Roberts understand that judges cannot make policy–pro-Catholic, anti-Catholic, or otherwise.  Everything in Judge Roberts’ record tells us that he is committed to the same judicial philosophy as that of President Bush:  to apply the Constitution and laws as written, and not to make laws up or rewrite the Constitution in judicial decisions.  Judges can’t make the laws governing abortion, marriage, or anything else.  All they can do is apply them.  Accordingly, in the view of President Bush and Judge Roberts, a Supreme Court justice’s personal, political, or religious views cannot be used as the basis to decide a case.

If it turns out that Turley is reporting accurately, it will not be the first-time offense for Senator Durbin.  He did the same thing to U.S. Court of Appeals judge William Pryor, a devout Catholic whom Durbin and others tried to block from the federal bench.  The religious inquisition of Judge Roberts, then, is really a smokescreen for the liberal litmus test about issues like abortion and same-sex marriage. Along with Senators Kennedy, Kerry, Schumer, and others, Senator Durbin treats judges like policymakers who wear black robes and are appointed for life.  Like all liberals, they fundamentally misapprehend the role of the judge under our Constitution:  to be a neutral umpire, applying the laws as written by the elected representatives of the people.

Because liberals can’t win popular support for their policy agenda–things like mandating abortion on demand for any reason through all nine months of pregnancy, forcing states to redefine marriage, and erasing God permanently and completely from the public square–they force it on people through the courts.  And they are afraid that Justices who are people of religious faith can’t be pressured into ruling from the bench in favor of their liberal policies.

So when Senator Durbin tries to corner Judge Roberts about some hypothetical “conflict” between Catholicism and the U.S. Constitution, the senator from Illinois is engaging in exactly the kind of religious witch hunt that the Framers of the Constitution sought to prevent in Article VI of the Constitution, which reads:  “no religious Test shall ever be requires as a Qualification to any Office or public Trust under the United States.”  The test is just harder to recognize, because although Durbin himself professes to be a Catholic, what he really objects to is a faithful Catholic–that is, one who, for example, personally accepts Church teaching on abortion.

By almost a five-to-one margin, American voters disagree that pro-life views on abortion should prevent a “well-qualified nominee” (such as a sitting judge on what is commonly considered the second highest Court in the land, who was graduated from Harvard College summa cum laude and Harvard Law School magna cum laude, who in private practice was perhaps the leading Supreme Court litigator of his day) from being confirmed to the United States Supreme Court.  This view is held across the political spectrum:  79 percent of voters overall, 81 percent of Republicans, 79 percent of Independents, and 77 percent of Democrats.

The irony of this reported inquisition is almost too much:  Senator Durbin, a self-professed Catholic, questioning the loyalty to the Constitution of a brilliant judge who has demonstrated his faithfulness to the law, even when he personally disagrees with it. 

Judge Roberts is too much of a gentleman to do what is really required with anti-religion bullies like Senator Durbin: Ask the senator what he does when his religious faith conflicts with public policies he advocates.


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