The Religious Test

I missed the Sunday talk shows. I chose sleep this morning--glorious sleep.

Thanks to transcripts, I'm catching up.


On Meet the Press, John Roberts and his religious beliefs were addressed. Former governor of New York, Mario Cuomo, and the former dean of the Catholic University School of Law, Douglas Kmiec were on the panel.

Naturally, Dem Cuomo argued that it is totally acceptable to have a religious test for Supreme Court nominees and that Roberts' faith should be an issue of concern.

FMR. GOV. MARIO CUOMO, (D-NY): Well, I don't think that there's any question but that religion is very relevant now, more relevant than it has been for a long time. Religion is an important subject in this country, has been from the beginning. But now, especially in recent years, thanks to Republican conservatives pushing it on government, and a president who, for example, makes a faith-based judgment on stem cells, is very strong on abortion on the grounds that any abortion, even to save the life of the mother, is murder, religion is a very important subject.

...Article 6 of the Constitution says this: "Every judge, every legislator, every public official must agree to this and take an oath to it, that the supreme law of the land in this country is the Constitution of the United States." Nothing can come before it. No pope, no religion, no personal belief of yours, no commitment that you have against war or whatever. And so they're similar.

PROF. DOUGLAS KMIEC: ...The same constitutional provision that the governor references that requires an oath to it also says that there shall be no religious test for public service. Let's remember the remarkable thing that the founders did. They created a country based upon a moral supposition that we are created equal, that we are created, that we have unalienable rights, including the right to life. And at the same time, they guaranteed freedom of religion, perfect freedom of religion, and they said no one is going to be required to take a test oath on the basis of faith in order to serve. And they said fundamentally that in this republic we're going to be our own governors.

There's been a confusion in the land as to what the role of the court is. And one of the great things about John Roberts and his nomination is that from the beginning he has made it plain, and through his entire professional career he has made it plain, that he is to judge cases or controversies that come before him, specific cases, that he's not forming policy. Now, we all know that the Supreme Court in Roe vs. Wade and in other cases go beyond the text of the Constitution. When they do that, they're in very treacherous and very dangerous territory. We know the history of this.

When Roger Tawney went beyond the text of the Constitution, he declared black men and women not to have natural rights. Abraham Lincoln when he came to that proposition said, "You know, I accept the ruling of Dred Scott for the parties in that case, but I don't accept it as a political rule as the law of the land." As a result, I think the injunction of the church and the injunction of our Constitution is to our executives and to our legislative branch to correct the errors that occur and the fact of the matter is is that the Supreme Court justices are to decide cases or controversies and not to legislate from the bench.

Cuomo continued to argue that a religious test is appropriate.

Something that jumped out at me was the way he kept talking about being "constructive." It must be on the Dem talking points for the week. Maybe the word "constructive" polled well.
MR. CUOMO: Now, practically and trying to be constructive, the question has to be answered. What you're really saying to the judge is, "Look, judge, just tell us whether there's anything about you, your religion or anything else, that will make you defy your oath to put the Constitution first." His answer is clear. He can only say one thing. "No. There is nothing." "Not even your religion?" "Not even my religion." OK. The reason they're trying to duck that issue is that then gets them into trouble with all those conservative Republicans, politicians and clerics who have attacked Democrats like Kennedy, like Ted Kennedy, like Gerry Ferraro, like John Kerry in the last campaign and said, "Oh, if you're religious," you know, "then you've got to do what the church says or you're a hypocrite." If Judge Roberts puts himself into that position, then the shoe is on the other foot politically.

To further complicate it from their side, there are Republicans, like Tom Coburn from Oklahoma, who are saying religion is a subject we should be asked about, and he did ask Judge Roberts about it. So I think very respectfully, of course we must get this question answered. I think I know what his answer is going to be, and I think then they'll have a political problem, but that's too bad. They started it. We didn't.

As I said, I didn't see the show, but it's easy to imagine Cuomo sneering and acting like a whiny kid.

"They started it. We didn't."

That argument is one best reserved for day care centers and playgrounds.
PROF. KMIEC: But again, the Supreme Court of the United States really needs to examine the question as a matter of law as to whether or not any issue has been properly decided not as a matter of Catholic faith, not as a matter of secular humanism, not as a matter of any other personal philosophy. It's a question of whether abortion or any other topic that comes before it can be found in the text and history and structure of the Constitution.

There's no conflict between John Roberts' faith and this constitutional system because this constitutional system is premised upon the dignity of the human person. And that--we created a constitution to advance human right and the human person not to subtract from it.

Well said.

Conservatives want a Supreme Court justice who will interpret law, not write it.

The Originalist test should be applied to all nominees. In the final analysis, that's what the confirmation hearings should focus on.
It's unfortunate that so many Senate Dems have promised to vote against Roberts based on the Roe v. Wade litmus test and his Catholic faith. "Unfortunate" isn't the right word. "Disgusting" is more fitting.

Russert said that because Kmiec had the first word, Cuomo would get the last.

How convenient! Russert gave Cuomo a platform and he exploited it.

I tend to think of the "last word" as a relatively quick statement, not an extended speech about abortion, contraception, stem cells, abstinence, Thomas Acquinas, and when human life begins.
To top all of that off, Cuomo ended by admonishing Catholics for being hypocrites.

Overall, I'm glad I slept in. I could podcast if I really wanted to see it.
No thanks.