Let's face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, "religion is the third rail of Supreme Court politics. It's not something that's talked about in polite company." And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss.I've written about it — on this blog and in the NYT.
Professor Mark Scarberry at Pepperdine law school, a self-described evangelical Protestant, says there should be no religious test for appointment.I think that since we talk about the race/ethnicity and sex of the Supreme Court nominees, we should talk about religious affiliation. Religion is an even more important aspect of diversity, since it resides in the human mind, and it is the mind that will be making the decisions that bind us. (Is it Protestant of me to think that religion resides in the human mind?)
"But I don't think that that means that a president shouldn't pay at least some attention to religious diversity on the court," he said. "It does seem to me that when you have such a large part of the country that has a particular sort of religious worldview, if there is no one on the court who is able to understand that worldview in a sympathetic way, then that creates difficulties."
It's odd how the problem has gone without notice until we are at the point where the Supreme Court will be composed entirely of Catholic and Jewish Justices. It does seem quite wrong to look at the short list of potential nominees and disqualify the very impressive candidates who are not Protestant. That seems like outright discrimination. But why is giving preference to a Protestant any different from going after a female/Hispanic candidate, as President Obama did with the last appointment?