Wednesday, May 12, 2010

Religion in the Public Square

And in the Supreme Court

One cannot take one's religious beliefs out of one's legal opinions, might be what any Judge might say. Ethics informed by religious beliefs informs legal reasoning one might hear anyone on a bench confess. John F. Kennedy's famous comments about his religion or it's institution not running his policy doesn't work so conveniently when one has to call upon and live within a framework of a body of ethics and moral principles in which to fashion moral principles and pronouncements pertaining to constitutional constructions. So I found it curious that with the resignation of Stevens from the Supreme Court the Court's last "Protestant" Christian is resigning, whose replacement now being proposed is Kagan, which would make the third Jewish Justice in a Court then of exclusively Catholic and Jewish Justices. I find this a remarkable event in a land overwhelmingly predominantly Protestant in numbers and origin. Not objecting, just find it remarkable and footnoteworthy in the historical evolution of the Court.
Juxtapose that with the fact that the European Constitutional convention drafters explicitly excluded any reference to the Christian roots of Europe in excising any such reference from the European Union Constitution- a secularization stripping of all religious constitutional references on purpose. So as not to offend the folks who hate Christians? Perhaps this intentional secularization is thought to make for better harmony, but contrast this with the US "We hold these truths to be self evident that all men are created equal...endowed by their CREATOR...."

How could that religious composition of the Court affect tilts and turns of matters having to do with the hot button culture war issues of the day such as abortion, and legalized gay marriage. Kagan has a virtually faultless resume which includes stints at the prestigious solicitor general's office and the first woman Dean of Harvard Law School- a glass ceiling crasher in a man's world. She doesn't tolerate discrimination of any kind against gays- which will play big in the confirmation hearings with the right trying to appeal to their base by making hay of kicking off military recruiters out of Harvard with their 'don't ask don't tell" policies. That won't play too well and will be overrun by the respect due the first woman Dean at Harvard Law School.

She will have to (or has already) send surrogates to defend that she is not gay- probably just had a string of broken hearted episodes coupled with an intense professional ambitiousness that had men running for the hills and no time for frivolities. Hey- it happens. Why a single woman has to deflect these snide rumors when people like Souter did not is a comment on the latent sexism still prevalent against childless women (as if they could have children alone or by merely wishing they existed). Questions about abortion views will probe in confirmations deeply but no one should expect to get a straight answer. Jewish beliefs differ from Catholic ones along party lines regarding ethics of abortion at various stages and it is not a widely held Jewish belief that abortion at any stage for any reason is a moral wrong. The Senate hearings don't want to turn into a referendum on Jewish theology or the South will lose again.

Clearly Kagan is clearly qualified to sit on the Court as are hundreds if not thousands out there. Women are less likely to be large rainmaking partners in firms so it makes sense and is fair that she comes from academia and government work- Ginsburg also came from academia. It's a path that has been much more open to women because people don't have a problem with women teachers like they do with ball-busting high powered law partners. Sotomayer broke a few molds. So this is likely to be a fairly quick non-controversial Supreme Court hearing, and the votes are likely there already from all camps. The summer interns from places that track these things from the right will be cautioned not to flail ranting about her ideologies because they were burned on the Sotomayor hearing and came out looking more spicely wing-nuttish than a bowl of buffallo wings dipped in blue cheese. My sense is that Kagan is a done deal unless of course they discover something so depraved as borrowing a client's car and not disclosing it on her taxes. (Give me a break)

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