As I wrote on the BJC blog, a Supreme Court confirmation hearing is essential day-long viewing for a news junkie like me. It’s the C-SPAN equivalent of the Olympics — an exciting and important display of American government focusing the nation’s attention on the role of its high court.
At least, it should be like that, right?
So, with laptop and vat of coffee at the ready, I watched Judge Sotomayor’s appearance before the Senate Judiciary Committee closely, waiting especially to document exchanges about church-state separation.
The stage was set for such questions. Analysis like the BJC’s demonstrated that, despite many years on the bench, Sotomayor’s record in religious freedom law is fairly thin. On Establishment Clause claims (challenges arguing the state improperly promoted religion), it is almost non-existent. The New York Times’ editorial board echoed advocates as divergent as Jay Sekulow (ACLJ) and Barry Lynn (Americans United for the Separation of Church and State) in urging senators to explore her stance on church-state separation. The Pew Forum even published ready-made questions from former BJC General Counsel Melissa Rogers on the subject.
Still, I waited…and waited, as senators explored other areas of the law and judicial philosophy. (If only, I thought, Judge Sotomayor had given a speech about a "wise Catholic woman…")
Minor references to religion arose here and there: Sen. Orrin Hatch, R-Utah, asked if First Amendment freedoms — including the freedom of religion — were “fundamental” in the legal sense (answer: yes). Sen. Lindsey Graham, R-S.C., lectured her on the Court’s rule that “you can’t voluntarily pray in school” (no, that’s not the rule), but didn’t ask a question on that topic.
Finally! Thanks to the last question of the third day, religious freedom was front and center! Referring to her decision in a prisoner case (Ford v. McGinnis), Sen. Ben Cardin, D-Md., asked for Judge Sotomayor’s “philosophy as to the importance of [freedom of religion] in our Constitution.”
Affirming it to be a “central part of our democratic society,” she briefly discussed the “important Supreme Court precedent” that led her to decide in support of the plaintiff’s free exercise claim: the sincerity of an individual’s religious belief is what matters, she said, not its comportment with religious tradition.
A fine, if not very probing, question garnered a confident answer highlighting a key constitutional principle.
But, no other questions on religious liberty were asked, meaning there were none at all regarding the establishment of religion in four days of hearings.
This apathy toward such an essential pillar of American religious freedom reminded me of another memorable C-SPAN moment (yes, I have a problem): a conversation in late 2006 between sitting Supreme Court associate justices Stephen Breyer and Antonin Scalia.
They don’t see eye-to-eye on many constitutional questions that come their way, but the two men readily agreed that the most difficult issue they face is the separation of church and state. Breyer discussed votes on Ten Commandment displays and school vouchers, and expressed anguish over the task of understanding “the meaning of the Establishment Clause.” Scalia chimed in, unprompted, “I agree. It’s the toughest.”
If it’s one of the toughest questions the judge will face, and an issue she agrees is central to our democracy, it would have been nice for a senator to ask her about it. They had a setting that, for just a few days, brings the country’s attention to constitutional concerns.
Don Byrd writes and continually updates the Baptist Joint Committee’s Web log. Read his latest work at www.BJConline.org/blog.
