As part of his campaign to defend even the most extreme of the Bush administration’s judicial nominees, Senate Judiciary Committee Chairman Orrin Hatch has repeatedly claimed in recent days that senators and progressive activists are opposing confirmation of some Bush nominees because of those nominees’ religious beliefs. These irresponsible charges further poison an already divisive atmosphere surrounding controversial judicial nominations, especially in advance of a possible Supreme Court vacancy and nomination.
It has long been a favored tactic of Religious Right leaders like Jerry Falwell and Pat Robertson to claim that criticism of their political agenda or tactics is an attack on their religious beliefs. This tactic is designed to put political opponents on the defensive, deflect attention from the substantive issues at stake, and rally supporters with fear of religious persecution. It is a cynical stratagem designed for short-term political gain, heedless of the long-term damage it creates.
It is bad enough that leaders of Religious Right political groups continue to engage in these tactics, and that the echo-chamber of right-wing pundits and media outlets like the Free Congress Foundation has predictably joined in. But it is even worse for elected leaders like Senator Hatch to adopt such tactics, using unfair charges of religious bias in an effort to intimidate senators into approving judicial nominees.
It was Hatch himself who, over the strenuous objections of Sen. Patrick Leahy, introduced questions about judicial nominee Bill Pryor’s religious beliefs into his confirmation hearing. At the hearing, Hatch claimed that Pryor had been asked about his “personal beliefs with regard to Roe v. Wade,” and asserted that Pryor’s position on Roe “stems from your pro-life beliefs, which in turn are rooted in your religious beliefs.” (Of course, senators were not interested in nor had they asked about Pryor’s “personal beliefs” about Roe, but about his frequently expressed legal opinion that it was an “abominable” decision with no textual support in the Constitution.)
Hatch appears to be trying to stake out a working principle that if a judicial nominee’s stance on an important legal or constitutional issue is said to be related to the nominee’s religious beliefs, then questioning or criticizing the legal stance is the equivalent of an attack on the nominee’s faith.
When Senator Leahy strongly objected to Hatch’s asking about Pryor’s religious beliefs, Hatch responded that “General Pryor’s religious beliefs have been put squarely at issue, and if not directly indirectly. But I think directly.” When Leahy said that asking about a nominee’s religious beliefs would set a “terrible precedent,” Hatch responded, “Then let’s get the outside groups to stop doing that.”
This was, unfortunately, an increasingly typical cheap shot by Senator Hatch. The broad coalition that has mobilized to defeat Pryor’s confirmation has nothing to do with his religious beliefs and everything to do with his long and well-documented record as an aggressive advocate for restricting Americans’ privacy, constitutional and civil rights, and legal protections. It is Pryor’s reactionary approach to the Constitution that should keep him off the appeals court.
It is irresponsible for Senator Hatch and anyone else to suggest that opposition to Pryor is grounded in anti-Christian or anti-Catholic bias. But he has done so repeatedly. The Hill newspaper reported on June 18 that Hatch has charged that Democratic opposition to Pryor “is based on bias against traditional religious beliefs.” Appearing on C-SPAN’s Washington Journal that same week, Hatch charged that religion has become a litmus test and that some Democrats are “anti-pro life Catholics.”
Others have made the same charge. Douglas Kmiec, former head of the Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush, wrote in the Wall Street Journal that Pryor and judicial nominee Carolyn Kuhl are “practicing Catholics” and that “the opposition to both comes dangerously close to a religious exclusion, or at the very least, indulges the tired belief of the Legal Realist school that it is impossible to separate who you are from how you judge. One thought that John F. Kennedy had put this kind of sophistry to rest in his 1960 presidential campaign. Apparently not.” It is somewhat ironic that Kmiec mentions Kennedy, because some right-wing leaders in recent days have criticized Kennedy’s famous speech in which he strongly embraced the constitutional separation of church and state. In addition, concerns about Kuhl’s opposition to women’s reproductive freedom are based not on her religious beliefs but on her staunch criticism of Roe v. Wade as legally unsound, and her efforts to have the Court overturn it.
Religious Right leaders are playing their part. The Center for Reclaiming America asserts it is Pryor’s “strong Christian beliefs” that could lead to a Senate filibuster. The Traditional Values Coalition’s Rev. Lou Sheldon claims that “what seems to bother liberals is that he is a practicing Catholic who has expressed pro-life views.” According to Sheldon, “liberals typically ignore the Constitution when it gets in the way of their pro-abortion, pro-homosexual political agenda.” And in case the message isn’t clear, Sheldon says “Pryor is being opposed by a well-organized anti-Christian propaganda machine that does not want any Christian or Constitutionalist to serve as a federal judge. That makes him a fine candidate in my opinion. He deserves to be confirmed quickly.”
Other Republican leaders have tried to sully opponents with the same kind of charges. Sen. Trent Lott, for example, has said that judicial nominee Charles Pickering was opposed because he is a Christian, a charge that is deeply offensive to members of the civil rights coalition that has helped lead opposition to his nomination, and is totally irrelevant to the concerns that led to the Senate Judiciary Committee vote against his nomination last year. After Lott was forced to resign from his leadership post in the wake of suggesting that the nation would have been better off if Strom Thurmond had won his segregationist 1948 presidential campaign, Lott even said that he himself had been targeted because he is a Christian.
Charges like Lott’s and Hatch’s can be dismissed as absurd, but they have a cumulative impact on our public discourse, especially when they are bolstered by right-wing broadcasters and political groups. Public officials who throw around false charges of religious bigotry and bias should be held accountable by members of the media.
Finally, on a personal note, as a practicing Catholic, I am deeply offended by the imputation of anti-Catholic bias to those of us who oppose judicial nominees who we believe, based on their jurisprudential views and record, would pose a threat to the values, legal principles, and constitutional protections that millions of Americans hold dear. People For the American Way’s board, staff, and membership have always included people of many religious traditions, lay people and clergy, whose faith is a touchstone for their work to achieve the kind of social justice advances that are threatened by the new generation of right-wing judges.