The Republicans’ latest gambit in the judicial confirmation battles — accusing the Democrats of applying anti-Catholic litmus tests — has been politically productive, but also provocative. It has been criticized by such Democratic senators as Richard Durbin, by the liberal journalist Richard Cohen, and, closer to home, by my colleague Byron York, writing on NRO.
York is the best conservative journalist on the judicial-confirmation beat. Actually, the “conservative” modifier in that sentence may be superfluous. It is no exaggeration to say that Republicans on the Hill and in the Bush administration have relied on York’s reporting to know what’s going on, not least within their own ranks. By objecting on principle to the Republicans’ tactics, York has shown an admirably independent cast of mind. In this case, however, I think the Republicans are basically right and York is wrong.
York believes that it is unfair, and even dangerous, to charge Senate Democrats with anti-Catholicism. He points out that the Democrats are not against Bush nominee Bill Pryor because he is Catholic; they’re against him because he’s against abortion. They would also oppose an evangelical Protestant who opposed abortion as vigorously as Pryor does. They would oppose an atheist pro-lifer, for that matter. The Committee for Justice, a Republican group that has run ads accusing the Democrats of imposing a “No Catholics Need Apply” test for judges, says that Democratic senators who complain about Pryor’s “deeply held beliefs” are making a veiled reference to his religion. York thinks that’s a real stretch. Pryor has said that Roe v. Wade has led to “slaughter.” You don’t need to know his religion to infer from that comment (among others) that he has deeply held beliefs on abortion, whatever the route by which he came to them.
York writes, “To turn the tables on Democrats, the GOP had to resort to the kind of interest-group-sensitivity attack [Republicans] have condemned when Democrats used them against Bush nominees. For example, the GOP’s accusations of Democratic anti-Catholicism are strikingly similar to oft-repeated Democratic charges that Republican nominees are ‘insensitive’ to issues of civil rights. The problem with such charges is that they are almost always phony. There is no more evidence that Democrats on the Judiciary Committee are anti-Catholic than there is evidence that Republican nominees are racists or judicial activists or religious zealots. . . . To win a momentary advantage on Pryor, Republicans had acted like Democrats at their worst.”
HOSTILE, NOT BIGOTED
York is clearly correct about several points. Prejudice against Catholics cannot be inferred simply from Senate Democrats’ opposition to such nominees as Pryor. I very much doubt that the Democrats believe, for example, that people who were educated at Catholic schools tend to be ignorant. No Senate Democrat has echoed Doug Wilder’s concern, voiced during the confirmation struggle over Clarence Thomas, that the nominee would be taking orders from the Pope. The business about “deeply held beliefs” being code for anti-Catholic prejudice is silly. (As is Howard Dean’s recent comment that “quota” is a code word designed to appeal to racist sentiments among white voters.)
I think a plausible case can be made that during the confirmation debate over John Ashcroft, Democrats really were playing on widespread prejudices about certain Protestant sects. (The Ashcroft fight, by the way, was a dress rehearsal for the current debate. The Democrats reacted exactly as they are reacting now to the charge of bigotry, and their anger then was a sign of political vulnerability, as it is now.) That case can’t be made now with respect to Catholicism.
So Republican rhetoric about the Democrats’ having adopted a “religious test for office” is not true. It is true, however, that the Democrats have adopted the next best thing. They have a viewpoint test for office that has the effect of screening out all Catholics faithful to their church’s teachings on abortion. The fact that the test screens out a lot of Protestants, too, makes the problem worse, not better. It really is true that faithful Catholics “need not apply” as far as most Democrats are concerned. A Catholic can win their support only by ceasing, on the decisive issue, to be Catholic — by breaking from his church’s teaching, as Senator Durbin has done. (It is rather disgraceful for a man who went in six years from supporting the Human Life Amendment to supporting partial-birth abortion to keep carrying on about the extremism of people whose beliefs have been less supple.)
Now the mere fact that a viewpoint test excludes many adherents of a religion from public office is not a conclusive argument against it. If someone has a religious conviction that the ritual murder of random victims is okay, I see no reason why that person cannot justly be excluded from many positions (provided that this exclusion is not accomplished by a law formally banning adherents of the religion from jobs). The most important question is whether the test is justified. Obviously, I believe — and would be prepared to argue, as I hope Senate Republicans are — that it is unjustified, to say the least, to demand that judicial nominees believe that abortion should be legal, that abortion is not a kind of homicide, that Roe was correctly decided as an original matter, that Roe should be upheld, or that parental-consent laws should be read to permit as many abortions by teenage girls as possible.
Is it fair to make a political issue of the impact that a litmus test has on a religious group? Absolutely. In the hypothetical example above, I think it would be entirely reasonable to ask a politician to declare openly that adherents to the ritual-murder religion should not be eligible for certain jobs. That declaration would of course affect the votes of those adherents, and of other citizens who are sympathetic to them. The Democrats are not prepared openly to say that their litmus test excludes Catholics and evangelical Protestants. That’s why they will continue to squeal even if Republicans make the argument in the most precise, rhetorically clean way possible. And why Republicans should not flag in doing exactly that.