Separation of Church & State and the Judicial Selection Process: Nan Aron


Nan Aron
Photo by Brent Nicastro

This speech was presented to the 28th annual convention of the Freedom From Religion Foundation on Nov. 12, 2005, in Orlando, Fla.

By Nan Aron

In 1924, the Chief Justice of the Supreme Court, William Taft, had a problem. It was time for an annual Court ritual: the group photo. But Justice James McReynolds was refusing to take part. To do that he would have to sit next to Justice Louis Brandeis.

Intolerable. Brandeis was a Jew.

Taft might have said, “Okay, we’ll take the picture without you.” Instead, he cancelled it. So there’s no formal portrait of the 1924 Court.

But the incident does give us a portrait–a portrait of how religious prejudice has intersected with picking judges in America’s past.

So in October, when President Bush told reporters that “part of Harriet Miers’ life is her religion,” that wasn’t new. When he passed the word to conservatives about what that religion was, he wasn’t breaking new ground.

Here’s the difference. President Wilson was telling America religious views didn’t matter. He was standing up to intolerance.

President Bush was knuckling under to it.

He was returning to something we had hoped America had abandoned.

I believe there is no legitimate reason to use nominees’ religion–or religious views–as shorthand evidence about how they’ll vote.

Not by a President signaling with a wink to supporters that a nominee is “all right.”

Not by Senators trying to pin them down about their fealty to their church, or faith–or lack of faith–in God.

Not by groups raising spurious charges of bias to intimidate the Senate.

Today I’ll talk about why what George Bush and others have done is so dangerous–and what we can do about it.

First, though, thanks for inviting me today.

It’s not new to have Americans who believe there’s only one way to be religious. But for a long time, even our “devout” judges thought that being religious meant upholding the Constitution.

But over the last 30 years, as courts have increasingly tackled issues of the culture wars–education, sexuality, the family–religious fundamentalists have been laying siege to the wall of separation.

Starting with President Ronald Reagan, extreme religious conservatives embarked on a mission to fundamentally alter the nation’s judiciary.

It’s no mystery that they’ve succeeded. In the eighties, the Reagan Justice Department made a deliberate effort to seek out brainy, young conservatives for the circuit courts. That’s why today, Republicans control eight of the eleven US circuit courts.

Forget FDR. It’s the Christian conservatives who packed the court.

They claim to support judicial restraint, but they propose the radical idea of injecting faith into our courts.

They claim to stand for original American values, but they ignore all evidence that our founders wanted faith and government to remain separate.

They claim judges can’t legislate from the bench, but they’re fine with legislating from the bible!

Don’t take my word for it.

Ask John McCain. In 2000 he accused his own party of “pandering to the outer reaches of American politics” by listening to “self-appointed agents of intolerance.”

Ask former Senator John Danforth. He recently said, “Republicans have transformed the Republican party into the political arm of conservative Christians.”–This from a Republican, who’s also an ordained minister!

But for conservatives to realize their distorted vision of America, they need more than a sympathetic legislature. They need an acquiescent judiciary. And this President knows that the easy way to shore up his base is to deliver on judges.

So, in the last few years we have seen the injection of religion into nomination after nomination.

If anyone doubts that this is a calculated decision, I invite them to look at the record.

As they did with Harriet Miers, this Administration will use a nominee’s religion as both a carrot and a stick. A carrot that they offer to their conservative base as a proxy for how the nominee will rule on the social issues that consume the radical right’s agenda. And a stick to beat at Democrats whom the Right accuses of being antireligious when they have the audacity to expect a nominee to answer questions about his or her judicial philosophy.

We saw it when supporters of Charles Pickering–the President’s 5th Circuit Court of Appeals nominee–accused critics of “anti-Baptist prejudice” rather than explain his decision to go easy on a man who had burned a cross on the lawn of an African-American family.

We saw it rear its virulent head during the nominations of William Pryor to the 11th Circuit–and Miguel Estrada to the DC Court of Appeals. That was particularly bitter. Pryor supporters ran ads during the debate, showing a door marked “Judicial Chambers” with a sign that read “No Catholics Need Apply.”

Actually, nobody knew what religion Pryor was until Orrin Hatch asked him during the hearings. But we were then treated to a remarkable Senate exchange about what “good Catholics” believe, begun by Alabama’s Jeff Sessions, a Methodist.

“Are we not saying good Catholics need not apply?” he said.

Dick Durbin, from Illinois, got up. “As a CathoIic, I sit in resentment of what I’m hearing,” he said. And he thanked the nonCatholics for “explaining Catholic doctrine to those of us who are.”

And was the religious right at work in the Roberts hearing?

It was.

We heard Catholic League President Bill Donahue saying he was trying to “intimidate” the Senate Judiciary with charges of antiCatholic bias.

We saw this statement: “Senate Democrats, especially those seeking re-election should know we will be watching carefully.” That was from a group called Priests for Life.

And we shouldn’t be surprised if the antireligious accusations are leveled at those of us who oppose the Alito nomination in an attempt to divert attention from his long record of ruling against ordinary people and in favor of corporations and powerful institutions.

What is so unfortunate is how successful the right has been at putting us on the defensive.

One of the most depressing sights in politics these days, is the silence from those who should be with us.

Where are the hundreds of groups who passionately believe in pluralism?

Where are the Jewish groups? Where are the Muslims?

And where are the senators who must recapture their role as leaders who should advise and consent?

The fact is, the radical right has cowed much of the progressive community. Republicans have been able to paint them as antireligious.

We cannot let them succeed. We must change the nature of the national conversation about our courts. And I believe we can.

We can do it by doing exactly what Republicans have done. Look closely at who votes–and what they think. Because most Americans are much more moderate, and much more tolerant–and much more with us than the radical right.

We should not be afraid to raise our voices. Whether agnostic or atheist, believer or skeptic, we will win by reaffirming our commitment to a pluralistic society. We’ll win when we assert that there must not be any legitimate interest by a President in the personal religion of judicial nominees.

That there should be no religious litmus test.

In a less tolerant era, Woodrow Wilson showed how courageous leadership can win out over fanatical narrow-mindedness.

Now we need to say with one voice: Mr. Bush, we don’t care about the faith of your judges. We care about your faith in the Constitution.

Work with us in the next few months to make sure the nominees give us candor, not cant . . . discussion not distortion.

Because if we do that, over time . . . we will win. We will take back our judicial system. We’ll make sure that when people study the portrait of the Supreme Court in our time . . . they’ll see judges who douse the flames of religious intolerance, not fuel the fire.

Q: Can you tell us more about Alito and particular reasons why you are opposed to him?

We all followed, didn’t we, the case of Harriet Miers? Well, we know what happened to Harriet Miers, and that was she didn’t fit the litmus test of Jerry Falwell and Pat Robertson and the whole slew of radical right spokespeople in this country, so she was withdrawn, and they gave us and George Bush the nomination of Sam Alito. A fact that’s interesting, because the Senate–I’m sure you all know this–has a voice in its nomination process.

Think back to Bill Clinton and his two Supreme Court picks, Ruth Bader Ginsburg and Stephen Breyer. In the Democratic Congress, who do you think named and suggested to Bill Clinton that he pick those two nominees on the Supreme Court? Was it the Democrats? Uh-uh. It was Orrin Hatch. Can you believe it? Orrin Hatch. But those two nominees sailed through, and that’s because President Clinton conferred with members of the other party.

In this instance with Sam Alito, George Bush conferred with only one group. Was it the United States Senate and the Democrats? Uh-uh. It was the radical right, and they liked Sam Alito because on issues like the environment, civil rights, women’s rights, reproductive rights, First Amendment and Fourth Amendment rights, he is a consistent vote against the little guy and in favor of the government or in favor of big corporations. He’s been on the 3rd Circuit Court of Appeals, appointed by Bush’s father, served on that court for 15 years. And when you look at the entire record–and I’ll tell you, it’s thousands and thousands of opinions–it’s rare that you see an opinion in a case that matters, I think, to any of us in this room, where he sides with an ordinary person. He is a consistent vote against us.

I’ll just give you one anecdote. A prosecutor sought a search warrant to go into a home and investigate a man who was accused of selling drugs. Prosecutor sent some police officers to the home. The man is not there, but it turns out that the man’s ex-wife and daughter had stopped by to pick something up. Police go in there and decide since they’re in the vicinity, that the police officers will not only search them, but the police proceed to strip-search the mother and her ten-year-old daughter. In a decision authored by Michael Chertoff–now you know who Michael Chertoff is, he’s director of Homeland Security, but he used to be on the 3rd Circuit Court of Appeals–he votes and rules that the police officers had no right to conduct a strip-search of a mother and her ten-year-old daughter. Who dissents? Sam Alito.

That tells you a story about Sam Alito, and it’s not just in the case of strip-searches. He would have struck down a ban against the possession of machine guns. Now, who in America needs to carry machine guns around? I don’t. But he would have struck down that ban on the 3rd Circuit Court of Appeals. He was the only judge in the Casey case–Casey involved this very famous case of abortion and reproductive rights–who said that before a woman sought and obtained an abortion, she needed to notify her husband. Well, what about women who have been abused by angry spouses? It made no sense whatsoever.

And remember, he’s being considered to fill the seat of Sandra Day O’Connor. Sandra Day O’Connor, when the Casey case went to the Supreme Court, was the one who chastised Alito for requiring women to have to notify their spouses before they obtain an abortion. Do we want him filling Sandra Day O’Connor’s shoes on the Supreme Court? I don’t think so.

His hearing won’t begin until January 9. Remember, he’s not just up for any old seat on the Supreme Court, but he is being considered for the pivotal seat in the Supreme Court. The seat that will make all the difference, because it’s O’Connor’s seat, who has in the past few years become a moderate on issues affecting church/state, affecting civil rights, women’s rights and reproductive rights. I would ask all of you to do what you can to join us at the Alliance for Justice in organizing opposition and in contacting your senators to vote against Sam Alito for the Supreme Court.

That was a very long answer but you gave me an opening. Thank you.

Nan Aron, President of the Alliance for Justice, has worked for public interest law for more than 30 years. She founded the Alliance, a national association of public interest and civil rights groups, in 1979. In 1985, she founded the Alliance’s Judicial Selection Project, a leading voice seeking a fair and independent judiciary, and a major player in controversial judicial nominations. She has written Liberty and Justice for All: Public Interest Law in the 1980s and Beyond, and has taught at Georgetown and George Washington University Law Schools.

She was staff attorney for the ACLU’s National Prison Project, and has litigated race and sex discrimination cases. She has a B.A. from Oberlin College and a J.D. from Case Western Reserve. Aron is a frequent guest expert with media outlets.

Freedom From Religion Foundation