Religion & Law

I am grateful to Paul Horwitz for his kind words regarding my comment on the Kagan nomination.  I agree with him, as he thought I would, that senators are bound by their constitutional oaths to limit their questions for judicial nominees to those which they believe it is appropriate for a nominee to answer.  I'm glad to know that Senator Charles Schumer agrees with me that questions about issues such as abortion, marriage, and the role of religion in American public life are appropriate; I'm disappointed to learn that Senator John Cornyn believes that they are not.  At least, this is what I gather from what Professor Horwitz reports.  After reading his comment, I composed a letter to Senator Cornyn stating my reasons for believing his position is incorrect from a constitutional point of view and urging him to abandon it in favor of the view held by Senator Schumer.  As I'm sure Professor Horwitz agrees, if he finds the reasons for changing his position persuasive, he is bound by his constitutional oath to revise his view and cannot be excused from doing so by the fact, if it is a fact, that some might accuse him of a conversion of convenience.

I do have one question, however, about Professor Horwitz's account of Senator Cornyn's view.  He reports that "Cornyn has made quite clear that he believes that a nominee's personal views about abortion and other issues are irrelevant to her fitness for the bench" (emphasis added).  Stated just that way, I would not necessarily disagree with Cornyn.  It depends on what one means by "personal" views.  I don't think the American public necessarily needs to know whether Elena Kagan or any other nominee believes that abortion is right or wrong, just or unjust; nor do we need to know whether she believes that this or that sexual practice or form of sexual partnership is morally good or bad; nor do we need to know what her religious convictions are.  In that sense, her personal views may indeed by irrelevant.  What we need to know in order properly to evaluate a nominee's suitability is whether he or she believes that some provision of the Constitution, or the Constitution somehow taken as a whole, may legitimately be interpreted as settling the question of abortion and removing it from the domain of democratic deliberation.  Ditto for marriage; ditto for, e.g., including "under God" in the Pledge of Allegiance.  (For that matter, ditto for the private possession of handguns, burning the American flag, and issues such as those at stake in the Citizens United decision.)  By answering questions about these issues---candidly and fully---a nominee will let us know where he or she stands on the central matters at stake:  namely the sources of constitutional meaning and the role of the courts in our system of constitutional government.  It is on the basis of the nominee's stands on these matters, considered together with intellectual attainment, integrity, and temperament, that Senators should, in my opinion, cast there votes for or against confirmation.