Score-keepers readying themselves for the forthcoming summer’s Armageddon-level Senate debates over the next Supreme Court appointment find plenty of skirmishing at the line of scrimmage before the first ball is snapped. One of the points of controversy, a side-issue to many and the whole ball game to others, has to do with the religion of a candidate to the bench and religious representation on the Court as a whole.
In the best of all possible worlds, or even in worlds slightly better than the one we have, citizens would pay attention to the U. S. Constitution’s rejection of religious tests for office. However, since “everyone else” is violating the Constitution, “everyone” plays the game of keeping score. This time the noise comes from those who notice that there will be no Protestants on the bench unless the President nominates one and the Senate is dozing enough not to notice. But notice it will and notice it must, because of the clamor.
Geoffrey R. Stone of the University of Chicago, in one of the most noticed, cited, and responded-to reflections on the issue, showed how bizarre it would be were the Executive to try to assure true representation on the Supreme Court: “To bring total Christian representation…down to the percentage of Christians in the current population, none of the next 22 justices should be Christian.” Further, none of the next 69 should be Protestant, none of the next 139 should be Jewish, et cetera. Insisting on representation, then, is a game: “Notice us; we are so important that we get a religious seat on the Court!” or “Not notice us and you’ll pay for it.”
The brutal game will be played, and the alert public can listen to hear what cases are being made. To grant a para-constitutional point, most “religious tests” are “cultural tests” or “power tests.” On the positive side of that case, it is true that people steeped in a religious culture might well hear religious nuances in cases, and can adjudicate them more sensitively than the spiritually tone-deaf might. Others do and will clearly use their “nuances” as weapons of judicial power. Overall, it might be best if the public said, “We are reassured you justices are religious; just don’t ‘use’ that religion too much.”
In any case, pity the President who thinks he or she can assure representation of Protestantism simply by appointing a member of a Protestant church. Many Protestant churches are culturally so settled in that they wouldn’t know what or how to protest. Many other Protestant people are so unsettled that they will lobby for their faction. Can the one who makes an appointment satisfy the people called Protestant? Most are, top to bottom, at odds with each other. From a satellite distance, they come in three large tribes: “Mainstream” or “mainline,” “Evangelical,” and “African-American.” Most citizens in any of these three groups will neither say “Hurrah for our side!” nor feel represented by any representative of the other two.
Thus would evangelicals Charles Colson, James Dobson, or Marvin Olasky, who enthused about the ill-fated appointment of “evangelical” Harriet Miers during the Bush administration, have been satisfied with any mainstream sort, and vice versa? Stone has only two criteria, or wishes, for the next appointment: The nominee “must have the intellect, temperament and experience necessary to fulfill the responsibilities,” as many Protestants do and other Protestants don’t; and he or she “should have the vision of the law…that is consonant with the president’s own aspirations.” For Stone, that should be it – but no one expects that will be.