c. 2003 Religion News Service

(Nathan J. Diament is director of public policy for the Union of Orthodox Jewish Congregations of America.)

(UNDATED) In late July, a previously unspoken argument over whether or not some of President Bush’s nominees were being opposed on the grounds of their religious beliefs spilled out onto the floor of the Senate Judiciary Committee.

The session was contentious with a great deal of finger-pointing, indignation and exasperation (and little discussion of the merits of the particular nominee before the committee _ William Pryor, Alabama’s attorney general, whom Bush nominated for a federal judgeship).

The proximate cause was an advertisement sponsored by a private advocacy group dedicated to supporting the Bush nominees. The Committee for Justice ads charged Democrats were opposing Pryor because of his Catholicism and were, as depicted in the ad, hanging up a sign stating “Catholics need not apply.”

Senators and editorialists declared this allegation to be beyond the pale of appropriate debate, but this dismissal, while appealing, is too quick and easy. If nothing else, one must wonder what is in the minds of those asserting this allegation of bias. If it has no basis in fact, accusing senators of bigotry is such a highly charged allegation that it will certainly backfire on its proponents and undercut their political goals.

There is a basis for this allegation.

It is a new catch phrase that has crept into the already overcharged questioning of candidates in the confirmation context _ “deeply held personal beliefs.”

This catch phrase first arose in the context of the Judiciary Committee’s confirmation hearings for John Ashcroft as U.S. attorney general. Along with being a staunch political conservative, Ashcroft was known to be deeply religious. Liberal opposition groups, and the Democratic senators responsive to them, not only raised questions about Ashcroft’s record as governor and senator on a range of policy issues, but inquired whether in light of his “deeply held personal beliefs” he would be able to fulfill the responsibilities of his office and enforce laws that might conflict with those beliefs.

Many Americans with a traditionalist religious orientation _ whether Orthodox Jewish, evangelical Protestant or orthodox Roman Catholic _ pricked up our ears when this question was asked. When we raised our concerns to the senators lining up to oppose Ashcroft, they of course protested they would never stoop to such bigotry.

The catch phrase seemed to have been retired for some time. It was not heard in the debates over the judicial nominations of Charles Pickering or Miguel Estrada or Priscilla Owen. They were critiqued along the usual lines used in such battles: Pickering was alleged to be insensitive to racial justice issues; Estrada was said to be insufficiently forthcoming with regard to his views on a range of issues; and Owen was charged with being unwilling to follow abortion rights precedents.

But then came last year’s consideration of the judicial nomination of Professor Michael McConnell. McConnell was acknowledged to be a scholar of the first rank and deserving of confirmation. Among his prolific writings and advocacy efforts _ mainly in support of pro-life causes and a more accommodationist approach to church-state issues _ McConnell revealed himself to be deeply religious as well. And so the liberal advocacy groups, and their Senate partners, again deployed the question of whether as a judge McConnell could enforce laws conflicting with his “deeply held personal beliefs.”

(McConnell was confirmed, it seems, only on the strength of his reputation among his liberal law professor colleagues.)

Now the catch phrase has been deployed with regard to William Pryor, a devout Catholic, and rumored to be raised regarding judicial nominee Leon Holmes, another openly devout Catholic.

To those of us in the traditionalist religious communities there seems to be a pattern emerging. The catch phrase has been used only in the questioning of openly religious individuals. Most of us still believe no U.S. senator would consciously oppose a nominee on the basis of the nominee’s religion.

But our charitable tendencies are undermined when we ask a simple question: Because there are many other grounds upon which opposition to these nominees might be framed, what does the question “Can you execute the responsibilities of this office despite your deeply held personal beliefs?” add to the discussion? Senators have opposed nominees because they disagreed with their stated positions on abortion, the death penalty or gay rights. Senators have opposed nominees because of a record of disregarding judicial precedents. Senators have even opposed nominees because they lack “judicial temperament.”

Perhaps nominee Pryor and others should be rejected on any or all of those grounds. If so, the question again is, what new or different aspect of a nominee’s fitness does inquiring into his “deeply held personal beliefs” seek to address?

Until this question is answered sufficiently or this line of inquiry is permanently set aside with regard to all nominees, many of us will be wondering if our worries are well founded.

DEA END DIAMENT