Supreme Court Nominee Miers

Richard Dougherty doughr at udallas.edu
Wed Oct 12 22:44:24 PDT 2005


I agree with Sandy and John Noble that the "Jewish seat" was seen as ethnic and not necessarly religious, but is that what the no religious test clause means  -- i.e., no religious test unless the individual is non-observant?  Does that make any sense?

Bush, as I read the quote, did not say that he picked her because of her religion, but because of who she is, and religion is part of that, so I'm not sure the premise of the discussion gets us anywhere.  If there is a religious test in place practically speaking, it is a test imposed by the American people when they choose the president, and I don't know how they can be sued for not electing an atheist or agnostic.

Richard Dougherty


---------- Original Message ----------------------------------
From: "Sanford Levinson" <SLevinson at law.utexas.edu>
Date:  Wed, 12 Oct 2005 22:54:09 -0500

> Earl writes:
>
>By the way, don't I seem to remember something about a Jewish seat?
>
>I think the "Jewish seat," which certainly existed (though,
>interestingly, no one, I believe, argued that Ginsburg and Breyer were
>appointed to fill such a seat), was based more on identity politics (as
>is true of the "Italian seat" now occupied by Scalia or the "female seat
>pioneered by O'Connor) than a belief that Brandeis et al. would bring a
>"Jewish perspective" to the Court, etc.  (Did Reagan believe that
>O'Connor would bring a "female perspective"?  Did she in fact do this?)
>Perhaps the assumption was that Jews were liberals, as has been true of
>the Jews appointed to the Court, but I still think it had more to do
>with identity politics than an otherwise inexplicable desire by
>Protestant or Catholic presidents to place people with "Jewish values"
>on the Court.  With Meirs, the rationale seems far less identity
>politics than putting someone with a presumed set of values, derived
>from and explained by (and presumably solidified by) her religious
>identity.  I assume, incidentally, that those Protestants who were
>reassured by Roberts' strong Catholic identity were quite certain that
>his Catholicism was quite different from that of Anthony Kennedy or,
>even more to the point, William J. Brennan.  
>
>It's also the case, for what it is worth, that none of the "Jewish
>Justices" has been notably observant.  I believe it is fair to say that
>all would be more easily classified as "secular Jews" than as
>significantly observant ones.  And, of course, even if one is more
>observant than, say, Frankfurter, (e.g., keeping some of the dietary
>restrictions and attending High Holiday services, as I do), that's still
>not evidence for the proposition that one is a "believing Jew" in the
>sense of ascribing to any set of theological postulates (I would
>certainly describe myself as "secular" in this regard).  I assume that
>the term "secular Protestant" or "secular Catholic" simply doesn't have
>the same purchase in our society as that of "secular Jew."  It only
>underscores that for many (including many Jews), the category "Jew" is
>more an ethic one, like Scalia's Italianness, than a "religious" one in
>any very deep sense.
>
>sandy
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
>


More information about the Conlawprof mailing list