Disreputable Organizations?

I was out of town over the weekend to work on my impending move to The American Enterprise, a publication of the American Enterprise Institute, so blogging had to take a back seat for a few days.

During that time, the story that strikes me as most revealing of the political left's contempt for, and distance from, even the elite right's culture is the controversy over John Roberts's association with two institutions deemed suspect by the left: the Catholic Church and the Federalist Society.

To handle the simpler case first, efforts to harm Roberts by associating him with the Federalist Society will work only to the degree to which the right acts as if membership in Gene Meyer's band of lawyers is something about which anyone should be embarrassed. If Ruth Bader Ginsberg can work for the ACLU, then John Roberts can snuggle up to the Federalist Society if he wants. And, as Michael DuBow emailed to Joe Knippenberg (who has another great post on this matter here), the very existence of a shadow legal academy should tell us much about the degree to which "mainstream" institutions, such as the ABA, have become partisan players.

As for the religious question, Roberts and his wife are of course practicing Catholics. In this, they join about 65 million other people in America, and over a billion more souls around the world. The Church has been around a couple thousand years, and it has even played a role in Western and world history. In fact, there's most likely an outpost of this organization not too far from where you sit. It would be called, in common parlance, a church.

Now, membership in this outfit still raises eyebrows here and there: among certain sects of far-right fundamentalists who're convinced the Catholic Church is a tool of Satan, the pope the Anti-Christ, and all Catholics hell-bound. Their mirror image on the secular left includes groups like NARAL, NOW, Americans United for Separation of Church and State, People for the American Way, and individuals like, oh, Sen. Dick Durbin of Illinois, lately in the news for comparing American troops to Nazis, Communists, and mass murderers in Cambodia.

One might think that Sen. Durbin, still wiping away the tears from his non-apology apology for making that comparison, might parse his words just a bit when speaking of another man's religion. (I know Durban's a Catholic too, but for political purposes, he seems to regard folks like Roberts as the Other.) But according to George Washington University law professor Jonathan Turley and others, Durbin has revived something resembling the old religious test for Roberts, lest a zealot who takes his church's teachings seriously endanger the republic by gaining high position.

Turley penned his now widely-circulated article in an effort to damage Roberts's nomination. But the key charge Turley makes -- that Roberts told Sen. Durbin that he would recuse himself from some decisions involving abortion or the death penalty -- has been denied by Sen. Durbin himself. This turnaround, which is damaging to Turley's own credibility, doesn't lessen the seriousness of Durbin's original question into whether or not Judge Roberts would allow his religious beliefs to guide his judicial decision-making.

If such questions aren't a violation of the prohibition of religious tests in Article VI, then how must that Article be interpreted? It's analogous to the ethnic test applied to Jews by some on the far right and far left: are you now or have you ever been a friend of Israel? If a policy wonk or diplomat answers yes, he may be considered an untrustworthy neocon. For the likes of Durbin -- if we're to believe Turley -- an affirmative answer to taking one's religion seriously is an obstacle to trustworthy juridical work. We saw this played out with Chuck Schumer's bigoted opposition to Judge Bill Pryor's "fervent personal beliefs," which was merely a thin veil for the expression of the Senator's anti-Catholic beliefs.

Back when Jim Crow ruled in the South, not every black man and woman was blocked from the polls through over violence. The white establishment employed subtler ways, including poll taxes, property ownership requirements, anti-miscegenation laws, literacy tests, and other means to exclude African Americans from exercising their Constitutional right to vote. Numerous pieces of legislation passed in Southern states from the 1870s forward worked to ensure that blacks were barred from the political process.

Of course, we haven't seen any laws passed that overtly prevent Catholics or other Christians from engagement in civil society. But if Roe v. Wade continues to be employed as a litmus test by the left, the effects on appointments to the federal judiciary are disturbingly similar to restrictions such laws might overtly impose. Sure, religious men and women may be elected to the highest offices in the land. But will the federal bench reflect these electoral victories? That's the crux of the current campaign to keep Roberts and like-minded jurists from attaining positions of influence in the courts. And as Bill Pryor and others (including Judge Roberts himself) could tell you, non-legislative bans can be pretty darned effective at weeding out candidates the left deems inferior.