Give Roberts Some Breathing Room

There’s a whiff of religious intolerance swirling around as the Senate approaches its hearings next week on the Supreme Court nomination of John G. Roberts Jr. Because he’s a devout Catholic, some senators — even Catholic senators — suggest that he’s too deferential to the teaching authority of the church to serve on the Court.

The charges are unfair; the concerns are unfounded. Although a Catholic and a conservative, Roberts also is an independent thinker who will decide cases on their merits. Recently released documents from his 25-year career as a government attorney and judge underscore this point. There’s no evidence that Roberts has ever deferred to the Vatican on matters of constitutional law.

Perhaps more important than this hint of anti-Catholic prejudice, the hearings are likely to expose the growing division within American Catholicism. On one side are liberal Catholics such as Sens. Richard Durbin, Patrick Leahy and Edward Kennedy, who believe that difficult moral issues such as contraception and abortion are matters of personal conscience, not canon law. On the other side are conservative Catholics such as Roberts and Sens. Rick Santorum and Sam Brownback, who are deeply loyal to the teaching authority of the church. The friction between these two factions may well be played out in the Senate hearings.

In fact, the first volley in this conflict has already been fired. During an informal discussion in his Senate office, Durbin pointedly asked Roberts what he would do if the law required a ruling that was in conflict with his Catholic values. Although abortion wasn’t mentioned, it was clear to those present that the issue was on everyone’s mind. Roberts paused and replied that he would most likely recuse himself. It must have been an uncomfortable moment for both Durbin and Roberts, Catholic to Catholic.

No doubt Durbin is worried that Roberts will defer to the Vatican. Adding weight to this concern is the fact that Roberts will become the fourth Catholic on this Court — the largest number in American history. Cognizant of the conservative philosophy of the new pope, Durbin must wonder about his potential influence on Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas as well as on Roberts.

Durbin and his colleagues are making too much of the power of the Vatican. To be sure, Roberts and the other Catholic justices are conservative; no surprise there. They are also independent thinkers who take orders from no one — including the pope. It’s unfair — perhaps even anti-Catholic — to presume that Roberts or the other justices would do anything other than to decide a case on the merits of its arguments.

The specific concern about Roberts’ independence is unprecedented. Even during the darkest days of anti-Catholicism before the Civil War, Catholics were approved to serve on the court without much mention of their religion. Roger B. Taney, a Maryland Catholic, was made chief justice in 1836, a time when the country was in the grip of anti-Catholic violence. Edward D. White came on the Court in 1894, during another period of anti-Catholic hostility. And there has never been even so much of a hint that Catholic justices ever followed anything other than their consciences in deciding cases.

And there is no pattern to the judicial philosophy of Catholic justices, once on the Court. Justices such as Taney, who supported slavery, and Pierce Butler, who opposed the New Deal, were quite conservative for their times. Others, such as Frank Murphy and William J. Brennan Jr., were champions of social justice and considered liberal. On the present court, Kennedy is considered moderately conservative, and Scalia and Thomas are very conservative.

The Roberts nomination is different. Unlike other Catholics who have been nominated, no one is giving Roberts the benefit of the doubt. Religious values of previous Catholics were not the subject of investigation and discussion, but Roberts’s values are being minutely dissected. His family background, his education, his wife’s values and even his parish are all under scrutiny as an indication of how he will vote on the court. In Roberts’s case, even his fellow Catholics are concerned that his form of Catholicism is an indication that he is too conservative for the court.

It’s likely that Roberts will have to field difficult questions on his religious beliefs during his confirmation hearings. Durbin, Leahy and Kennedy will push the nominee to declare how he will vote on matters such as abortion, school prayer and capital punishment.

These senators should back off and give Roberts some room. Of course the Senate has a right to discuss the beliefs that might affect his decisions, but Roberts also has a right to personal privacy regarding his religion. On that one point, at least, both liberal and conservative Catholics can agree.

Timothy Walch is director emeritus of the Herbert Hoover Presidential Library in West Branch, Iowa, and the editor of "At the President's Side: The Vice Presidency in the Twentieth Century" (1997).