- The Washington Times - Wednesday, May 27, 2009

If confirmed for the U.S. Supreme Court, federal appeals court Judge Sonia Sotomayor would be the sixth Catholic to sit on a bench that, before the current crop of justices, had featured only six Catholics in its entire history.

Little is known of the nominee’s religious life other than that she attended Cardinal Spellman High School, a Catholic parochial school in the Bronx, and Catholic scholars and jurists differ over how much their religion should influence their judicial decisions, even on such hot-button issues as abortion and gay marriage.

Justice Antonin Scalia told listeners at Villanova Law School in October 2007 that “there is no such thing as a ‘Catholic judge,’ ” going on to give the “bottom line” that “just as there is no ‘Catholic’ way to cook a hamburger, I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.”

But Robert Destro, professor at the Columbus School of Law and founder/co-director of Catholic University of America’s Interdisciplinary Program in Law and Religion, said a person’s religion “inevitably” makes a difference in how a judge rules.

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“It’s not just a way of thinking; it’s a set of assumptions and worldviews,” he said.

Besides Justice Scalia, the Catholics now on the court are Chief Justice John G. Roberts Jr., and Justices Anthony M. Kennedy, Samuel A. Alito Jr. and Clarence Thomas. Justices Stephen G. Breyer and Ruth Bader Ginsburg are Jewish, and Justice John Paul Stevens is Protestant.

Judge Sotomayor, who is divorced with no children, would replace David H. Souter, who is an Episcopalian.

At Tuesday’s introduction ceremony, Judge Sotomayor did not mention her religion, and President Obama made only a glancing reference to her having attended Cardinal Spellman.

Most of the current Catholic justices fall to the court’s conservative side, and Judge Sotomayor is not considered likely to reinforce their majority. Mr. Obama voted against the Alito and Roberts confirmations and said he would use different criteria in picking justices.

But as an example of how religion affects decision-making, Mr. Destro cited how the First Amendment jurisprudence of Justice Oliver Wendell Holmes, who sat on the court from 1902 to 1932, was grounded in his religious skepticism.

“Justice Oliver Wendell Holmes was a skeptic. That showed up in his opinions. The whole ‘marketplace of ideas’ philosophy that truth wins out in the marketplace was from Holmes,” Mr. Destro said.

Justice Holmes “was also very skeptical of truth claims. But Catholics and Jews would not be skeptical of truth claims. Justice Ginsburg makes no bones about the fact her Jewish sense of justice and obligation influences how she sees things.”

In a reference to Justice Louis D. Brandeis, who sat on the court from 1916 to 1939, Mr. Destro said, “One of the great things about Justice Brandeis is that he reasoned like an educated Jewish person would. That is what made his legal opinions so interesting and powerful.”

But Robert P. George, a Catholic legal scholar and director of Princeton University’s James Madison Program in American Ideals and Institutions, said “a true constitutionalist judge” would not be affected by religious background.

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