Supreme Court nominee's religion is a consideration
The sudden death of Supreme Court Justice Antonin Scalia has spawned a political firestorm over who should be entitled to nominate Scalia’s successor.
Ranking Republicans say it should not be President Obama, even though the Constitution clearly assigns this authority to the chief executive.
“In the final year of a presidency, it is common for vacancies that arise on the Supreme Court to await the outcome of the next election,’ said U.S. Sen. Pat Toomey, R-Pa., in a prepared statement. “Given that we are already well into the presidential election process and that the Supreme Court appointment is for a lifetime, it makes sense to give the American people a more direct say in this critical decision. The next court appointment should be made by the newly-elected president.”
The argument should draw sharp skepticism, especially when spoken by a tea party supporter like Toomey who ordinarily insists on a literal interpretation of the Constitution.
A more practical aspect of Toomey’s argument is that any appointment to the Supreme Court must be approved by a majority of the Republican Senate, which Toomey says is likely to reject any Obama nominee.
Whoever succeeds Obama as president is likely to appoint at least one or two more Supreme Court justices. Ruth Bader Ginsburg will be 88 years old at the end of the next president’s first term, Stephen Breyer will be 78 and Anthony Kennedy will be 84.
Scalia was widely regarded as a staunch conservative. Toomey and the Republicans fear Obama will nominate a far less conservative successor. The overriding concern is that an ideological balance is maintained on the court — an equal number of conservative and liberal leanings.
The current court makeup is as ideologically and ethnically diverse as eight judges can be. There are three women, one African-American and a Hispanic.
But from a religious standpoint, they adhere to only two religions — Judaism and Catholicism. Scalia was a Roman Catholic, as are Justices John Roberts, Clarence Thomas, Samuel Alito, Kennedy and Sonia Sotomayor. The remaining three, Ginsburg, Breyer and Elena Kagan are Jews.
Is this a problem? It shouldn’t be. The Constitution plainly states that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”
And yet. in a nation with religions almost too numerous to count, a concentration of just two religions in the makeup of our highest court could contribute to blind spots. Complex legal cases like the 2014 Hobby Lobby contraception dispute should make us pause and ponder, as the Huffington Post’s Chris Weigand wrote: “Three Jewish justices and one Roman Catholic voted against five other Roman Catholics in a case defining the dividing line between religion and government — a decision which affects us all.”
Surely it must be coincidence that the court became so lopsided in its religious affiliations. But it’s equally certain that capable, qualified candidates for the court include at least a few Protestants.
It wouldn’t hurt Obama’s chances of Senate approval if he were to nominate a Protestant as Scalia’s successor.
