With Elena Kagan, the right invokes a religious test

"[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.”

And in September 2005 -- in response to questions that Sens. Arlen Specter (then the top Republican on the Judiciary Committee) and Dianne Feinstein (D-CA) asked John Roberts -- Miranda wrote:

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”:

MIRANDA: I think the real concern is, the question has to be, is Elena Kagan still a socialist? And the reason -- 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 the 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. And so there is the question whether Elena Kagan still has that roots.

“New York.” “Jewish.” “Socialist.” (Never mind that Kagan isn't -- and wasn't -- a socialist or a radical.)

Pat Buchanan hit the same themes when he published an angry diatribe complaining that with the addition of “leftist” Kagan, there will be too many Jews and too many New Yorkers on the Supreme Court:

Indeed, of the last seven justices nominated by Democrats JFK, LBJ, Bill Clinton and Barack Obama, one was black, Marshall; one was Puerto Rican, Sonia Sotomayor. The other five were Jews: Arthur Goldberg, Abe Fortas, Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan.

If Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats.

Is this the Democrats' idea of diversity?

But while leaders in the black community may be upset, the folks who look more like the real targets of liberal bias are white Protestants and Catholics, who still constitute well over half of the U.S. population.

Not in living memory has a Democratic president nominated an Irish, Italian or Polish Catholic, though these ethnic communities once gave the party its greatest victories in the cities and states of the North.

What happened to the party of the Daleys, Rizzos and Rostenkowskis?

And not in nearly half a century has a Democratic president nominated a white Protestant or white Catholic man or woman.


If Kagan is confirmed, the Court will consist of three Jews and six Catholics (who represent not quite a fourth of the country), but not a single Protestant, though Protestants remain half the nation and our founding faith.

If Kagan is confirmed, three of the four justices nominated by Democratic presidents will be from New York City: Kagan from the Upper West Side, Sotomayor from the Bronx, Ruth Bader Ginsburg from Brooklyn. Breyer is from San Francisco.

What kind of diversity is this - either in geography or life experience?


From her Princeton thesis on the sad demise of 20th-century socialism, to her tears at the defeat of the radical liberal Senate candidate Elizabeth Holtzman in 1980, to her hostility to the U.S. military on the Harvard campus while dean of the law school, Kagan has revealed herself to be one more Ivy League leftist anxious to use a lifetime seat on the court, winning the plaudits of her peers by imposing her ideology on a nation that has never voted for it.

Conservatives will not soon get another opportunity like this to take down Ivy League pretensions to represent and rule America.

In response, the Anti-Defamation League called Buchanan's screed “bigoted and unacceptable” and noted that Buchanan is “a recidivist anti-Semite who never misses an opportunity to show his fangs.”

Sen. Frank Lautenberg (D-NJ) said, “It is outrageous that Mr. Buchanan is using Elena Kagan's religion as kindling to enflame opposition to her nomination to the Supreme Court. ... It sounds like Mr. Buchanan longs for the days when religious quotas kept people out of high-ranking positions in government.”

Unfortunately, implicit support for religious quotas isn't limited to obvious bigots like Buchanan. Purportedly respectable conservative Kathleen Parker -- in a nationally syndicated column that ran in The Washington Post -- also invoked the number of Jews (and liberal New Yorkers and Catholics) on the court and contrasted them with “ordinary people” and “the vast rest of the country”:

Then again, spending one's formative years walking past the infamously crime-riddled Murder Hotel en route to school, as Kagan did -- and, say, walking past the First Baptist Church to ballet class -- are not the same cultural marinade.


President Obama has made clear his desire to nominate justices who are in touch with “ordinary Americans.” He specifically mentioned “empathy” in choosing Sotomayor. Before Kagan's nomination, Obama said he wanted someone with a “keen understanding of how the law affects the daily lives of the American people.” He wanted a justice who, like retiring Justice John Paul Stevens, “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Enter Kagan?

Certainly New York City dwellers would argue that they struggle with ordinary concerns, just in a more dense environment. But New York, like other urban areas, tends to be more liberal than the vast rest of the country. More than half the country also happens to be Protestant, yet with Kagan, the court will feature three Jews, six Catholics and nary a Protestant. Fewer than one-fourth of Americans are Catholic, and 1.7 percent are Jewish.

One does not have to be from a rural Georgia backwater (Clarence Thomas), or the child of recently arrived immigrants (Antonin Scalia and Samuel Alito), to qualify as a justice, though it might help in claiming identity with ordinary people. One could even argue that it matters only that one regard the law with utter neutrality.

But the president adheres to the ordinary-people principle, and so the question must be asked: Does Kagan meet the standard? She may have other qualifications, including her willingness at Harvard to invite conservative scholars to her faculty. But a New York City girl who attended a prep school, Ivy League colleges and law school -- who once barred military recruiters from Harvard's recruitment office and was an adviser to Goldman Sachs -- can't be characterized as anything close to mainstream America.

Either Obama may want to tweak his operating narrative -- or geography may well be Kagan's wound.

It sure sounds like the conservative media is pushing a religious test.