Observers see ‘double standard’ in hearings for Catholic Supreme Court justices

New York City, N.Y., Jul 15, 2009 / 01:19 am

A prominent commentator and a prominent law professor have questioned whether there is a “double standard” in the treatment of Catholic Supreme Court nominees, depending upon whether or not each nominee is faithful to Catholic teachings.

William McGurn, political commentator and former speechwriter for President George W. Bush, claimed in his Wall Street Journal column that Judge Sonia Sotomayor’s professed faith is being treated far differently than previous Catholic nominees to the high court.

In the discussion surrounding Justice Alito’s January 2006 confirmation hearings, Feminist Majority President Eleanor Smeal complained that the majority of the Supreme Court would be Catholics if he were confirmed, McGurn recalled.

In Chief Justice John Roberts’ confirmations, a Los Angeles Times article stressed the “strong anti-abortion views” of Roberts’ wife and characterized her as an “extremely, extremely devout Catholic.”

McGurn also said that Bill Pryor, a nominee to the 11th Circuit Court of Appeals, was the subject of speculation by Sen. Charles Schumer (D-NY) that Pryor’s “deeply held” beliefs would “deeply influence” his adherence to the law.

By contrast, Judge Sotomayor’s confirmation would put six Catholics on the nine-justice court. Besides “a few scattered references,” McGurn said, the nominee’s religion has been greeted with a “yawn.”

“It's possible, of course, that Democrats and their allies in the media and activist community no longer regard Catholics with the suspicion they did back when President George W. Bush's nominees were up for consideration. More likely, the relatively soft reaction to Ms. Sotomayor's Catholicism is because of a calculation that when it comes to hot-button issues such as abortion or gay marriage, she doesn't really believe what her church teaches,” McGurn charged.

The commentator then cited Princeton law professor Robert P. George, who noted this apparent phenomenon may have its roots in different theories of jurisprudence.

One theory, which George said was held by Justices Roberts, Alito and Scalia, says that a judge may not bring his own moral beliefs to bear on legal rulings. Another theory holds that a judge has a responsibility to bring his or her moral beliefs to cases.

George told McGurn the latter theory leads to the “politicization of the judicial process” and also charged a double standard exists.

“The same people who feel no compunction in trying to use the Catholicism of an Alito or Pryor to raise suspicions about their suitability then cry foul when anyone demands to know the basis of the moral convictions and personal feelings of someone that a liberal Democratic president is trying to place on the Supreme Court.”