Chicago Tribune - Should Faith Play Role in Court Pick?

By James Oliphant, Tribune Washington Bureau

WASHINGTON - When Supreme Court Justice John Paul Stevens steps down this summer, he'll leave the court, long dominated by followers of the Protestant faith, without one for the first time in its history.

That historical oddity has reignited a low-key debate about whether the religion of a justice matters, and whether President Barack Obama should consider the faith of his next nominee.

Without Stevens, the Supreme Court will comprise six Catholic and two Jewish justices.

Two of the three candidates said to be the favorites for the nomination, U.S. Solicitor General Elena Kagan and federal appeals court Judge Merrick Garland, are Jewish. A third, federal appeals Judge Diane Wood, is Protestant. The White House says there are at least six others under consideration.

Mark Scarberry, a law professor at Pepperdine University, said that having Protestant representation is key in a country where about half of Americans identify themselves as such.

Without it, "you could have an undermining of confidence in the court, a sense of a lack of participation, especially when the court is dealing with high-voltage issues like religious freedom," he said.

But Jay Sekulow, a lawyer who often argues on behalf of evangelicals before the high court, calls such talk a "distraction."

"The religious background and beliefs really are not relevant to that process. It's how the judge views himself and his role in government," Sekulow said. "The fact that someone shares my theology -- I'm more concerned that they share my judicial philosophy."

Pamela Harris, head of Georgetown University's Supreme Court Institute, says religion is just another factor that should be considered.

"It's hard for me to see religion as especially different than all the other things that presidents take into account, such as race and gender," she said.

The current composition of the court marks a dramatic shift from tradition. Only a handful of Catholic judges -- and even fewer Jewish ones -- had served on the court until the late 20th century. And the idea persisted that Catholics "held" one seat and Jews another.

In that sense, religion has long been intertwined with the nomination process. President Dwight Eisenhower famously nominated William Brennan Jr. to the court in 1956 in a bid to woo Catholic support for his re-election campaign.

The justices themselves have discussed the issue from time to time.

Samuel Alito complained last year in a speech about "respectable people who have seriously raised the questions in serious publications about whether these individuals could be trusted to do their jobs."

Antonin Scalia has been one of the few justices to directly address the role his Catholicism plays in his deliberations, largely as a means of reconciling his devotion to his faith with his votes to uphold death sentences in capital cases. He has said that any Catholic judge who believes the death penalty is immoral should resign.

But he has stressed that his faith has had little effect on how he views his role as a judge.

"I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic," he said in a 2007 speech.