Conservative media have invoked Supreme Court nominee Elena Kagan's Judaism in order to suggest that she may be a radical or that the court would not represent mainstream America if she is confirmed.
"[N]o religious test shall ever be required as a qualification to any office or public trust under the United States."
-- United States Constitution, Article VI
In April 2004, right-wing activist Manuel Miranda baselessly complained that Democrats had invoked a "religious test" against Bush judicial nominee William Pryor.
In April 2005, Miranda reportedly "distributed talking points to Republicans" claiming that Democrats had created an "abortion litmus test" for judicial nominees that was "nothing but a surrogate for a constitutionally prohibited religious test."
Anti-Semitism marred the confirmation battles of associate justices Abe Fortas, Louis Brandeis, and Benjamin Cardozo, but it was unpronounced and hidden. John Roberts will be only the 11th Catholic (out of 109 justices) to serve on the Supreme Court in its 215-year history. But his confirmation may be a historic first. It marks the introduction, on the record, of a constitutionally prohibited religious test for a Supreme Court nominee. We are going in the wrong direction.
Of course, the claims about Democrats invoking a "religious test" during the Bush years were largely fabrication. Moreover, it was generally conservatives and Republicans -- not Democrats and progressives -- who obsessed over the religious views of President Bush's judicial nominees.
But Miranda did get one thing right: we indeed appear to be "going in the wrong direction" on religious tests.
In a May 12 podcast for the right-wing Accuracy in Media, Miranda warned listeners about Elena Kagan's "background" in the "Jewish socialist culture in New York":
Is right-wing legal activist Manuel Miranda changing his tune on Elena Kagan?
In a May 11 Washington Post article, Dana Milbank highlighted praise by Miranda -- whom Milbank called a "smart conservative activist" -- for Kagan: "The president must be commended for shunning left wing activists who demanded that he select a Supreme Court nominee who could promise results for the clients that fund their advocacy. He selected a perfectly reasonable nominee for a Democratic president."
But just a day later, in an Accuracy in Media podcast, Miranda was saying something decidedly different:
MIRANDA: Well, I mean, certainly this has been -- there's been a clamor on the left, particularly with senators like Patrick Leahy, they have been calling for nominees without judicial experience. One of the reasons for that is that it's well rooted in past experience. Most -- eight of the nine members of the Warren court had been nominated -- when they were nominated, they had no judicial experience. So from their point of view, a court that has politicians on it rather than people with a deep judicial record are more likely to be activist court than not, and that makes some sense. In this case, I think that President Obama knows his nominee, knows her views on the structure of the court and the Constitution, and doesn't really need to have a judicial record to display those views. He knows them.
Miranda's invoking of the "liberal activist" meme is a bit disingenuous, since he's not averse to a Supreme Court that's activist toward his way of thinking. While Miranda opposed President Bush's selection of Harriet Miers as a justice in 2005, it wasn't because of her conservative ideology; he wrote that "I want a judge who will rule as we want" -- "we" being Miranda and his fellow conservatives.
Miranda even helpfully provided lines of attack for conservatives against Kagan. After noting that the issue of Kagan's role regarding military recruiting at Harvard Law School "benefits the right" because it "paints the left as being anti-military" -- even though Kagan is not -- Miranda focused on another talking point:
MIRANDA: I think the real concern is, the question has to be, is Elena Kagan still a socialist? And the reason I say that is because in her early writings, in her early life, in the formation of her political sense, it is pretty clear that she is an American socialist. She comes from that background. I grew up in New York, she grew up in New York. I'm very familiar with the sort of Jewish socialist culture in New York, which has an enormous pedigree, has done wonderful things in promoting a way of life and developing American society, but at the end of the day is still socialist.
Of course, the idea that Kagan is a socialist isn't true either.
It seems that Miranda doesn't actually believe that Kagan is a "perfectly reasonable nominee" after all. Further, it appears that what Miranda has to say about Kagan depends on who he's speaking to. When he wants to sound like a "smart conservative," he'll chat up Dana Milbank and praise how "reasonable" Kagan is. But when he needs to boost his right-wing cred with folks such as AIM -- to promise results for the clients that fund his advocacy, if you will -- it's time to haul out the attack lines and false smears he wouldn't dare discuss with someone like Milbank.
That kind of pandering may indeed make him the "smart conservative activist" Milbank says he is -- just not in the way Milbank thinks.