- 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.

“A good judge will get the same judgment whether he is Protestant, Catholic, atheist or Hindu,” he said.

“The role of a judge is to authentically and accurately say what the law is. He gives effect to the law, applies it to the facts in a particular case and resolves the case. Judges should not permit their religious views or even their particular views on justice shape their interpretation of the law.”

Chris Korzen, executive director of the liberal-leaning Catholics United, said his group “welcomes President Obama’s nomination of Sonia Sotomayor to the Supreme Court. We admire Judge Sotomayor’s reputation of putting aside political beliefs in order to issue sound legal decisions, her commitment to religious liberty, and her significant federal judicial experience. These are precisely the qualities that Catholics look for in those we trust to interpret the law.”

The Catholic majority on the court was noted even before the Sotomayor pick. After a 2007 decision upholding Congress’ ban on partial-birth abortion, University of Chicago law professor Geoffrey Stone started a flap with a post on the school’s faculty blog titled “Our Faith-Based Justices.”

The professor criticized the high court’s decision before going on to note that “All five justices in the majority … are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore.”

An editorial cartoon by Tony Auth in the Philadelphia Inquirer showed the five justices who upheld the partial-birth ban wearing miters - the identifying headwear of Catholic bishops.

While Judge Sotomayor’s record on abortion is thin, the most prominent case she handled did not go the way pro-choice forces wanted. She wrote the 2nd U.S. Circuit Court of Appeals’ opinion in Center for Reproductive Law and Policy v. Bush, a 2002 ruling that rejected a challenge by abortion providers to the “Mexico City Policy” barring recipients of U.S. funds from performing or supporting abortions.

Relying on 2nd Circuit precedent, her decision rejected claims by pro-choice groups that the policy violated their First Amendment free-speech rights.

She also said the Center for Reproductive Law and Policy had no standing to bring a due-process claim (the groups supposedly harmed were other, foreign groups), and denied its claim of an equal-protection violation, saying the federal government “is free to favor the anti-abortion position over the pro-choice position” with public funds.

Historically, Episcopalians have topped the list of justices’ religious affiliations at 32.4 percent, followed by Presbyterians at 17.6 percent.

The first Catholic justice, Roger B. Taney, was the chief justice of the U.S. Supreme Court from 1836 to 1864. The son of a Maryland plantation owner and slaveholder, he wrote the majority opinion in Dred Scott v. Sandford in 1857, which forbade blacks from becoming citizens.

But some Catholics just beamed anyway.

Beliefnet blogger David Gibson half-joked soon after the White House released Judge Sotomayor’s name Tuesday morning: “Anyone want to go for a sweep?”

• Julia Duin can be reached at jduin@washingtontimes.com.

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