Stop me if you've heard this before
The last week or so I've ruminated over whether John Roberts' religious beliefs--or the religious beliefs of any Supreme Court nominee--are fair game for questioning by senators or the media during the confirmation process. (See here and here.) I tend to think that in an age in which conservative religious leaders are trying to assert their influence as never before over politicians and the political process, then such questions are legitimate, despite their legacy of discrimination, particularly against Catholics.
The New York Times offers a nuanced examination of the issue in today's paper, and one thing strikes me as a I read it. As conservatives have argued for years--usually, of course, in reference to abortion--some issues simply are better left to the messy realm of legislatures, where voters and their elected representatives have far more influence than they do over the courts. Because we have ceded so many of our most important and contentious decisions to the judicial branch, we are left to devine, through any method possible, how each nominee for the bench will decide a particular case, rather than on whether they are simply well-qualified to be a judge.
Of course, one might correctly argue that a particular view of civil rights or abortion makes one unqualified for the bench, and there is room for reasonable people to disagree not only on the specific issues, but also on the extent to which we should tolerate deviation from long-held principles. Arguing, for example, that court-ordered busing is wrong is far different than arguing that Brown v. Board of Education was wrongly decided. And because the Constitution is meant to protect the rights of the minority against the tyranny of the majority, not every decision can be adequately settled in the political realm. We would not have trusted the southern states, circa 1954, to put segregation to a vote, and give us a just result.
However, governing is an art, and not a science, and we must address these matters on a case-by-case basis. We turn to the courts when politics fails us. But when the courts fail us, the result is often far uglier, and, as we have seen with abortion, has the potential to poison our politics for generations. So it is thus that we seek not only to know whether John Roberts is a good jurist, but also a good Catholic, and then fight over what the answer means.