John Roberts Is Being Victimized Because He's a Catholic

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Mr. Walch is the director of the Herbert Hoover Presidential Library Museum in West Branch, Iowa, a historian of American Catholicism, and a writer for the History News Service.

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There's a whiff of religious intolerance swirling around  as the Senate approaches its hearings next week on the Supreme Court nomination of John G. Roberts Jr. Because he's a devout Catholic, some senators -- even Catholic senators -- suggest that he's too deferential to the teaching authority of the Catholic Church to serve on the Court.
The charges are unfair; the concerns are unfounded. Although a Catholic and a conservative, Roberts is also an independent thinker who will decide cases on their merits. Recently released documents from his 25-year career as a government attorney and judge underscore this point. There's no evidence that Roberts has ever deferred to the Vatican on matters of constitutional law.
Perhaps more important than this hint of anti-Catholic prejudice, the hearings are likely to expose the growing division within American Catholicism. On one side are liberal Catholics such as Sens. Richard Durbin, Patrick Leahy and Edward Kennedy, who believe that difficult moral issues such as contraception and abortion are matters of personal conscience, not canon law. On the other side are conservative Catholics such as Roberts and Sens. Rick Santorum and Sam Brownback, who are deeply loyal to the teaching authority of the church. The friction between these two factions may well be played out in the Senate hearings.
In fact, the first volley in this conflict has already been fired. During an informal discussion in his Senate office, Durbin pointedly asked Roberts what he would do if the law required a ruling that was in conflict with his Catholic values. Although abortion wasn't mentioned, it was clear to those present that the issue was on everyone's mind. Roberts paused and replied that he would most likely recuse himself. It must have been an uncomfortable moment for both Durbin and Roberts, Catholic to Catholic.
No doubt Durbin is worried that Roberts will defer to the Vatican. Adding weight to this concern is the fact that Roberts will become the fourth Catholic on this Court -- the largest number in American history. Cognizant of the conservative philosophy of the new pope, Durbin must wonder about his potential influence on Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas as well as on Roberts.
Durbin and his colleagues are making too much of the power of the Vatican. To be sure, Roberts and the other Catholic justices are conservative; no surprise there. They are also independent thinkers who take orders from no one -- including the pope. It's unfair -- perhaps even anti-Catholic -- to presume that Roberts or the other justices would do anything other than to decide a case on the merits of its arguments.
The specific concern about Roberts's independence is unprecedented. Even during the darkest days of anti-Catholicism before the Civil War, Catholics were approved to serve on the Court without much mention of their religion. Roger B. Taney, a Maryland Catholic, was made chief justice in 1836, a time when the country was in the grip of anti-Catholic violence. Edward D. White came on the Court in 1894, during another period of anti-Catholic hostility. And there has never been even so much of a hint that Catholic justices ever followed anything other than their consciences in deciding cases.
And there is no pattern to the judicial philosophy of Catholic justices, once on the Court. Justices such as Taney, who supported slavery, and Pierce Butler, who opposed the New Deal, were quite conservative for their times. Others, such as Frank Murphy and William J. Brennan Jr., were champions of social justice and considered liberal. On the present Court, Kennedy is considered moderately conservative, and Scalia and Thomas are very conservative.
The Roberts nomination is different. Unlike other Catholics who have been nominated, no one is giving Roberts the benefit of the doubt. Religious values of previous Catholics were not the subject of investigation and discussion, but Roberts's values are being minutely dissected. His family background, his education, his wife's values and even his parish are all under scrutiny as an indication of how he will vote on the Court. In Roberts's case, even his fellow Catholics are concerned that his form of Catholicism is an indication that he is too conservative for the Court.
It's likely that Roberts will have to field difficult questions on his religious beliefs during his confirmation hearings. Durbin, Leahy and Kennedy will push the nominee to declare how he will vote on matters such as abortion, school prayer and capital punishment.
These senators should back off and give Roberts some room. Of course the Senate has a right to discuss the beliefs that might affect his decisions, but Roberts also has a right to personal privacy regarding his religion. On that one point, at least, both liberal and conservative Catholics can agree.

Note: The views expressed are those of the author alone and not those of the Hoover Presidential Library or the National Archives and Records Administration.

This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.

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Francis Smith - 9/16/2005

Nobody is "born Christian" or "born Catholic"--you're made thus at baptism. I was born an American. To say the least, I feel greater allegience to the Constitution than to the Magistrerium (the Catholic law). I hope that all Catholics in government would follow suit.

E. Simon - 9/7/2005

And if not, then what? Oh my my, Dear Lord, in America everyone gets to define their religious beliefs, whether in accordance with some more broadly held doctrine, or not. God forbid that matters of American law can differ with such doctrine. Oh wait, but they can and often do. Thank God for that. And thank God that we can judge the abilities of those who decide such law on a sound legal basis, rather than other considerations that have no such basis in American law.

Pity that so many need to be reminded that there is no such religious waiver or dispensation from widely applicable standards for deciding one's fitness for public office in a non-theocracy. Hopefully we won't need a converse to the 1st amendment in order to get that point across. Hopefully.

Marc "Adam Moshe" Bacharach - 9/7/2005

I can only assume then, that you would consider all Catholics who do not accept the full cannon of the church, including all non-practising Catholics, to be in fact not a "real" Catholic. Is this a correct assumption?

Gustavo Jos Herrera-Marcano - 9/7/2005

The moral teachings of the Catholic Church are more profound than any other influence. To think that there is a difference among catholics, i.e.: conservatives and liberals in matters of moral issues is abolutely wrong. On those matters every Catholic is uncompromising

Jeremy Dupertuis Bangs - 9/5/2005

Perhaps the directive that reportedly was sent during the last presidential election campaign, from Rome by Cardinal Ratzinger to American Roman Catholic bishops. instructing them that they were to refuse communion to politicians who disagreed with him on abortion, justifies curiosity about how Judge Roberts would respond to any similar directives in the future. This is not some vague anti-Catholicism but a valid question under current circumstances when direct interference in American law and politics has occurred in ways that are unparalleled in those long-gone days of 19th-century prejudice.

Marc "Adam Moshe" Bacharach - 9/5/2005

The title alone of this article is, frankly, insulting to the intelligence of HNN readers and frankly, more than a little baiting. For decades, liberals were often accused of playing either “the race card,” or engaging in “class warfare” anytime either race or class were brought up, even if legitimately. Now, Mr. Walch would have us believe that that Roberts is being “victimized” because he is a Catholic.

Mr. Walch says that “The charges are unfair.” However, “of the approximately 200 instances Media Matters identified in which media mentioned Roberts's religion, more than 50 were instances of Roberts's supporters touting his Catholic faith or baselessly attacking Democrats for alleged anti-Catholicism, a number roughly equal to the approximately 50 instances in which news reports independently raised the question of whether Roberts's religion would influence his actions on the court. By contrast, Media Matters found only 16 reports of Democrats or Roberts critics questioning how his religion might influence his decision-making on the court, of which 14 were references to a question Sen. Richard J. Durbin (D-IL) allegedly asked during a meeting with Roberts. Numerous media outlets have focused significant attention on Durbin's purported query while ignoring a similar question posed to Roberts by Republican Sen. Tom Coburn (OK).”

Indeed, a brief inspection of so-called “liberal” organizations opposed to Roberts, including NARAL, People for the American Way, and others mention absolutely NOTHING about his faith (at least nothing that I could readily find).

The article then goes on to divide Catholics in this country between “liberal Catholics… who believe that difficult moral issues such as contraception and abortion are matters of personal conscience, not canon law,” and “conservative Catholics such as Roberts and Sens. Rick Santorum and Sam Brownback, who are deeply loyal to the teaching authority of the church.”

This divide is a myth, and entirely partisan. The divide is not on how one views Church law, but on what political philosophy one holds. Neither Roberts, Santorum, or Brownback, for example seem to have any problems with the death penalty, going to war against Iraq, or cutting welfare spending, issues that the Church has taken definitive stands on. The obvious implication that abortion “makes or breaks” a Catholic is a convinient political ploy utilized because Democrats and liberals believe in legalized abortions while Republicans and conservatives do not. Thus, it is useful to use that as the benchmark rather than, say the increasing concentration of wealth (also condemed by the Church).

As to Senator Durbin’s question (which of course was first mentioned by Republican Senator Coburn), I am curious as to why this is somehow out of bounds or wrong? Walch adds, almost as an afterthought, that “No doubt Durbin is worried that Roberts will defer to the Vatican” but in fact this is a legitimate question if Roberts truly considers himself devout, is it not? The contention that “Durbin and his colleagues are making too much of the power of the Vatican” simply by aking Roberts what he would do if there was a conflict between “the law,” and “the church” is absurd, and to say that asking such a question is “unfair -- perhaps even anti-Catholic” is simply insulting and baseless. No one “presumed” that “Roberts or the other justices would do anything other than to decide a case on the merits of its arguments.” They simply asked a simple question to a person who will be holding a position of incredible power and authority for the rest of his life.

The article firmly implys that ANY attempt to question Roberts on virtually any controvercial subject, including such issues as “abortion, school prayer and capital punishment” is anti-Catholic, and subjecting poor Roberts to “difficult questions on his religious beliefs.”

”These senators should back off and give Roberts some room”?!? This is a lifetime appointment, Mr. Walch and Americans are enttield to know how this person intends on doing his job. The contention that any disconfort Roberts experiences during his confirmation process is a sign of anti-Catholicism is a perfect example of how some people will cry discrimination simply to put any detractors on the defense.