Marc Cooper writes in today’s Fish Wrapper that the right pick to the Supreme Court to replace John Paul Stevens would be an open atheist. He confines himself to making some obvious points about how one’s religious beliefs do not and ought not be considered to define one’s actual civic virtues, and worries that the strict separation demanded by the Constitution has fallen into light regard today. Still, for all the headline-grabbing cachet of Cooper’s column, I’ve got three simple sentences in response:
Not. Gonna. Happen.
Here’s why. First, President Obama himself is — or at least publicly identifies as — a deeply religious man; he wrote in his autobiography about powerful personal religious experiences, like finding Jesus and entering the fellowship of an active church engaged in many charitable works intended to benefit the community. He has also indicated that he cares about a judge’s ethical and emotional makeup, and will look for someone whom he sees as being cast from a similar sort of fiber as himself. This excludes a nonbeliever almost a priori.
Second, while Obama has thrown a few bones of recognition and inclusion to non-believers, both the depth and breadth of his core political support groups are based in no small part on being identified with religious people. Contrary to what a few True Believers insist about him being a secret Muslim, the vast majority of people in the country take him at his word for his religious identification and like him more because of it. At the same time, atheists are the most despised minority in America, and Obama has been careful to not get too close to them in making his public statements. When representatives of the Secular Coalition for America were invited to the White House, for instance, they were briefed by a lower-level staffer and the President himself was nowhere to be found. This is not so big a slight, seeing as a group of secularists had never before been invited to the White House at all, but let’s not mistake it for a regular seat at the table, which is something Obama lacks the political flexibility to offer.
Third, there is Jeffrey Toobin’s taxonomy of Supreme Court jurisprudence. There are two kinds of cases the Supreme Court hears: first, there are cases involving abortion rights, and second, there is everything else. Both parties have their opposing litmus tests on this issue and even though everybody winks at this fact, let there be no doubt that if there is an overriding attribute Obama is looking for in a Supreme Court Justice, it is to vote against further erosion of abortion rights.
Finally, let’s not forget what it is that a Supreme Court Justice is supposed to do — understand and apply the Constitution to particular cases, in such a manner as to extract important principles and guide the future development of the law. At its core, the Supreme Court is a court of Constitutional law. The individual religious outlook of a Justice is no more important to his or her ability to do that job than is the Justice’s race or eye color. Religious belief is simply not as important as the ability to understand the implications of complex Constitutional arguments and the ability to distill the policies and concepts in play down into usable legal rules.
With that in mind, let’s take a look at a pretty good assessment of the the short list:
- Martha Minow, dean of Harvard Law School
- Elena Kagan, Solicitor General, former Harvard Law dean
- Sid Thomas, Montana federal appeals court judge
- Merrick Garland, federal appeals court judge, Washington DC
- Jennifer Granholm, Michigan governor
- Diane Wood, Chicago-based federal appeals court
- Janet Napolitano, Secretary of Homeland Security
- Leah Ward Sears, former Chief Justice, Georgia Supreme Court
- Ann Claire Williams, federal appeals court judge, Chicago
I haven’t done any deep research into any of these possibilities to determine their religious identification. But from this list, it would seem that religious identification simply isn’t a big factor in the first place. So, who on this list is Cooper trying to choose?