Bush nominates John Roberts to Chief Justice Position
This morning, President Bush announced that he is nominating John Roberts to the Chief Justice position. Mr. Roberts was formerly President Bush's nominee to fill Justice Sandra Day O'Conner's seat.Earlier, the Washington Post published an article titled "Roberts Hearings Likely to Enter Religious Territory" which predicted that Judge Robert's religion (Catholicism) would become an important factor in his confirmation (or lack there of):
The degree to which Roberts's religious beliefs may inform his judicial philosophy could be a significant line of questioning, especially given that Roberts is replacing Sandra Day O'Connor, a key vote on many contentious social issues.
The article also quotes a few United States Senators as follows:
Judiciary members who have expressed curiosity about Roberts's religious views include Sen. Richard J. Durbin (D-Ill.), a liberal and a Catholic, and Sen. Tom Coburn (R-Okla.), one of the panel's most conservative members. Coburn queried Roberts privately about how his faith influences his work and ran into resistance. "He said, 'I'm very uncomfortable talking about that,' " Coburn told reporters, adding he intended to raise the issue again.
This seems to bring up some interesting Article VI religious test problems ("but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States"). What are your thoughts on any potential line of questioning that deals with Judge Roberts religious beliefs? What are your thoughts in general with regard to Judge Roberts being nominated to the Chief Justice position?
posted by Fern @ Life on the Balcony at 4:58 AM
19 Comments:
I also believe the provision that "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" was enacted to prohibit the states from imposing religious qualifications for federal candidates to Congress. I remember reading this when I was reading the Thomas dissent in the term limits case; in that case, Thomas eloquently said that throughout our nation's history the states imposed requirements on who could stand for federal office, and this was one way to limit what the states could do on the religion question.
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The usual disclaimers.
Michael Gordon - sardonical@yahoo.com
You could say that the Article VI religious clause has two parts. The first part is the "Oath or Affirmation, to support this Constitution." The second part is that "no religious Test shall ever be required as a Qualification." Read in context with the first requirement, the second part does not forbid any question regarding religion, but only those that are not germane to the first requirement. That is, Art. VI forbids any test that would tend to require allegiance to a relgion, but it perhaps does not forbid a test that gauges one's allegiance to a religion to the extent that that allegiance might impinge on the first part of the Art. VI test, namely on the ability to support the Constitution as the supreme law of the land.
If Roberts's is so "uncomfortable" with distinguishing his personal/religious views from his judicial views, then I think that questions probing this area are absolutely appropriate and relevant in determining his qualification under the first part of the Art. VI test.
I find the announcement of Judge Roberts' nomination as chief justice to be a bit of a downer. For one, we don't know much about his jurisprudence since he has no tenure on the Supreme Court. This could, on the other hand, be a good thing, since there is less material for senators to sling at him.
Secondly, Justice Scalia's visit last week affirmed my excitement about the possibility of him being nominated to the chief's office. Perhaps this was a naive hope of mine. In light of the political situation in the senate, would it be realistic to expect Scalia's nomination as chief justice to go through? I wonder what Justice Scalia thinks about this. He mentioned in his lecture that he wasn't confirmable in today's senate, despite the 98-0 vote he received in 1986. It is consoling to hear his glowing praises for Judge Roberts. Maybe Justice Scalia feels a sense of relief?
Tim--The part of the third clause of Article VI which you allude to is this, "The Senators and Representatives...and all executive and judicial officers...shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." What I read that to mean is that (1) all governmental officers must take an oath to uphold the Constitution, and (2) there cannot be some sort of religious test or a certain religious qualification to hold governmental office.
To figure out whether a line of questioning involves an unconstitutional religious test, I think it pertinent to look into the intent of the person asking the question. I am having a hard time thinking up a legit reason to ask someone about their religious beliefs. I guess a Senator might ask something along the lines of a common voir dire question, "Do you hold any personal or religious beliefs that would prevent you from passing judgment on someone or something?" But come on! Of course Judge Roberts doesn't have that problem, he's already been sitting on the DC Circuit for 2 years passing judgment on all sorts of issues and people. Other than that, I don't see why any Senator would or should care that John Roberts is a practicing Catholic as opposed to a devout Hare Krishna. His job is not to interpret Vatican II, it's to interpret the United States Constitution, which he has been doing since the second he stepped out of law school.
Pardon me for being glib, but if this is the extent to which we can expect John Roberts to be "grilled," his confirmation hearing will come and go without incident. I expect that his nomination for the top seat will create little friction- apparently, most Chief Justices are outsiders to the bench (as in, not currently on the Supreme Court). Something like 13 of the last 16 Chief Justices were outsiders.
I'm a bit surprised that Chapman's esteemed guest was not considered, though word has it that the current administration was not so pleased with Scalia's recent opinions. Another interesting dynamic to John Roberts' nomination is that perhaps O'Connor will not be leaving the bench anytime soon. John Roberts stands to replace the late Chief Justice now. That, and the "dreaded" John Paul Stevens doesn't get to perform the Chief Justice roles, by virute of being the senior most member of the court.
At any rate, given the little fanfare the nomination of John Roberts has caused, I suspect the next nomination will be more controversial. If only because John Roberts' nomination was practically a non-event. The chances of the administration finding another eminently qualified candidate without much judicial history is slim.
Like Jake, I find myself somewhat disappointed that Justice Scalia did not receieve the nomination. I guess I was impressed with him and developed a small personal bias, a rooting interest if you will.
More importantly, Roberts is somewhat of a wildcard, especially compared to sitting Supreme Court justices. He may be great, but I do not have the same degree of confidence in him that I have in Scalia or Thomas.
As far as confirmation goes, I think he will sail through largely unscathed.
Rightly or wrongly Scalia is percieved even by conservatives as being to confrontational to be able to build a coalition majority like Justice Rehnquist was often able to do. Also, I don't think it is much of a shock that President Bush would want to create his own legacy with someone likely to sit on the bench for a long time.
Justice Scalia is gettting up there in age...he's almost 70 years old. Even if he served until he was 80--as did Justice Rehnquist--that's only 10 years. John Roberts is 49 (I think). If he served until he was 80, he would be able to steer the Court for over 30 years.
Another reason not to nominate a sitting justice: three confirmation hearings. With the current state of political affairs in the Senate, three confirmation hearings could take a long time and going through the process doesn't guarantee a sucessful confirmation. Three confirmation hearings could mean that a third of the Supreme Court is in limbo for who knows how long.
I'm sure that Roberts is capable of separating his religious principles from his constitutional principles. Perhaps I need more context. The quote from the home page that troubles me is this:
Coburn queried Roberts privately about how his faith influences his work and ran into resistance. "He said, 'I'm very uncomfortable talking about that,' "
After having attended the Scalia meeting so recently, and hearing his very comfortable reply to almost this very same question, I was quite startled to learn how badly it startled Roberts. After all, for someone going through the nomination process for becoming a Supreme Court justice, this type of question is about as predictable is "what is your name." Seems to me he would have a stock answer.
Then again, I've had little time to read up on Roberts as much as I'd like.
Tim--Maybe it made him uncomfortable for the very same reason that the founders made that sort of question unconstitutional. "How does your religion influence your interpretation of the Constitution" sounds like the Senator has in mind a certain level of acceptable religious influence and any more than that level of influence and the Senator will vote not to confirm Roberts. Sounds like a religious test to me.
Also, Justice Scalia may feel more comfortable discussing his religious beliefs and how they influence his jurisprudence because he's already got the job and he can't be fired.
I will only continue because I am just habitually argumentative...
You mentioned that the question of his allegiance to the constitution should be moot since he's been discerning between his religious and his constitutional beliefs throughout his career. I'm not so sure that the question just becomes moot once he enters his first public office, and that thereinafter he is excused from having to re-affirm that he should be "bound by Oath or Affirmation, to support this Constitution," ostensibly as opposed to his particular religious beliefs. I don't think that questions probing his discernment between matters of religious significance as they might apply to his jurisprudence are necessarily unconstitutional, since they can reasonably be related to re-affirming that he will indeed support the constitution as the supreme law of the land.
But then again, I will concede that relgious folks are put in very unfair circumstances, since they can easily be put into very suspicious context by their strategizing opponents. I do not doubt that this is what he was trying to avoid. Thus the only point that I will still press is that such questions are not per se unconstitutional as violative of Article VI, although I concede that he has a compelling objection under the "religious test" clause of the same article.
Tim--I think we all like to debate...that's why we're in law school. ;-)
I don't think Roberts "allegiance" to the Constitution is moot, Senators are free to probe in that area however they see fit (obviously they must do so in accordance with other parts of the Constitution, American law and tradition).
I did suggest that using questions about Roberts "allegiance" to the constitution as a facade in order to get around the religious test prohibition is unconstitutional. At the very core of the religious tests prohibition is the idea that government officials need not set aside their religious beliefs when they become government officials nor must they hold certain religious beliefs. Any question which involves religion is--by it's very nature--a "religious test" because there is a "right" answer and a "wrong" answer in the questioner's mind. There is no way around that hidden agenda, because it is perfectly possible to be a "good Catholic" and faithfully interpret the Constitution. Justice Scalia, Justice Kennedy and Justice Thomas have already proven that.
I freely admit my ignorance as to what actually goes as sound doctrine in this area, but my sense is that one should not take such a broad approach towards defining what constitutes a "religious test." It is fair game to ask questions of how personal values affect one's jurisprudence. Sen. Hatch asked Ginsburg during her confirmation hearing whether she would agree that a "judge's authority derives entirely from the fact that he or she is applying the law, not his or her personal values." For some individuals, religious values and personal values are so intertwined that an overbroad definintion of "religious test" would make unconstitutional such routine questioning of judicial candidates.
Especially in this age of judicial activism, it seems there is a strong interest in ensuring that judges serve the constitution. I think that Scalia's answer was deceptively simple; I would not assume that all or even most judges are capable of leaving their personal and/or religious beliefs out of the court room.
Let me put the question to you this way: is there any question touching on matters of personal religion that, in your view, would not be unconstitutional? What is the modern definition of "religion" anyway? Is secular humanism a religion? How exactly do we distinguish religious beliefs from merely personal beliefs? Or should there be a distinction? For example, if I do not attend church, but believe that abortion is morally repugnant, am I subject to an inquisition regarding this belief where a Catholic would be immune? This is a reductio ad absurdum argument that tends to show that the "religious test" logically extends to something like a "personal belief test." I don't think anyone thinks this is a good place to end up.
Tim & Fern,
I don't think I have as much to contribute to this discussion, but one of Scalia's comments comes to mind. During his lecture he said something like this: "I don't feel more strongly about my political beliefs than I do about my religious beliefs or my moral beliefs." Do you remember that?
What I gathered from that was political worldviews and religious worldviews are sort of equivalent. They are pieces of knowledge that a person holds to be true.
In other words, I don't know that you can separate a person's religious beliefs from their political beliefs. Since these kind of core beliefs (political, personal, religious) inform and interlock with one another, they all come in one package. So Tim, I think I agree that it would be a mistake to distinguish between religious and personal beliefs.
I can see why some senators would be uncomfortable with a man like Judge Roberts, since he may claim to submit his religious/personal beliefs to the Catholic Church. But since the Catholic view (Disclaimer: I'm Catholic) of the person and its natural rights seems to be pretty congruous with our Constitution, I don't think it's that big of a deal. But what if he attended a mosque ministered by a radical muslim? How would things be different if that were the case? Would senators be justified in applying more scrutiny to his religious/personal/political worldview?
I think the answer has to be "yes," it is appropriate to determine the degree to which one's personal/religious beliefs will bleed over into his judicial decision-making.
Fern poses the claim that any such questioning could be a smokescreen for imposing an unconstitutional religious test. Clearly that is a concern, but I think the answer has to be somewhere in between the two positions. We can't simply refrain from asking any questions that might have to do with one's personal/religious beliefs. Yet we must be wary of candidates being sabotaged by malicious questioning.
You all have raised some really interesting questions and propositions. I don't know what the right answer is regarding someone who practices a radical/extremist religion. I have to admit that the idea makes me really uncomfortable, but so does the idea of categorizing some religions as "acceptable" and others as "unacceptable." The idea that certain religions cannot hold governmental office seems to be the exact situation the Founders were trying to avoid.
Hopefully the Fed-Soc will be having a debate about the judicial confirmation process next week (I am just trying to nail down a date and time that works for both of the participants). You guys should definitely bring up these questions/observations/concerns at the debate. I'd love to hear the two constitutional law scholars' (Professor Eastman and Mary Ellen Gale from Whittier) views regarding the religious test clause.
I would love to also see a debate regarding this issue. I think Eastman will also be discussing this in the meeting for the Republican group but I don't think that will be a debate.
I'm sorry, Eastman will simply be discussing his thought on John Roberts and the 'overall confirmation process' and not specifically the religious test clause. I suppose someone could bring it up...
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