One of the most contested battlegrounds involving Christians in public service has been the president's nomination of Christian conservative lawyers to the federal bench. The Senate has the constitutional power of advice and consent over presidential judicial appointments. In recent years, Senate Democrats on the Judiciary Committee have adamantly opposed conservative nominees and, particularly, conservative Christian ones. In many cases, opposition is so fierce that Democrats won't agree to vote the nominees "out of committee" to let the entire Senate vote on the appointments. Such refusals to confirm Christian nominees are, in effect, an unconstitutional imposition of a religious test for holding office.
When President George W. Bush nominated J. Leon Holmes to the U.S. District Court for Eastern Alabama, he selected a man whose academic credentials are impeccable. Holmes graduated first in his law school class and has a Ph.D. in political science from Duke University. He has enjoyed an impressive legal career and has been endorsed by the generally liberal American Bar Association. Beyond career and academics, he is widely admired for his charitable work. But there is one problem: He is a devout orthodox Catholic who affirms the teachings of the Roman Catholic Church, including the tenet that abortion is wrong. He has served as
6 Jenifer Warren and Richard C. Paddock, "Randy Shilts, Chronicler of Aids Epidemic, Dies at 42; Journalism: Author of 'And the Band Played On' is Credited with Awakening Nation to the Health Crisis," The Los Angeles Times, February 18, 1994.
Jack Begg, "Word for Word/Nameless Dread; 20 years Ago, the First Clues to the Birth of a Plague," The New York Times, June 3, 2001. The section from the Times story reads: "For more than a year the epidemic officially remained unnamed. A patient in San Francisco was given a diagnosis of F.U.O.: fever of unkown origin. Some scientists and journalists referred to K.S.O.I. (Kaposi's Sarcoma and Opportunistic Infections) or GRID (Gay-Related Immune Deficiency). A New York magazine feature story termed it 'The Gay Plague. In September 1982, the C.D.C. finally put a name to it: Acquired Immune Deficiency Syndrome."
president of Arkansas Right to Life, has been unapologetic about his fervent pro-life convictions, and refuses to bow to that secularly imposed sacrament of Roe v. Wade, believing it was erroneously decided.
A man of such character simply would not do for Democratic Senators Charles Schumer, Dianne Feinstein, and Dick Durbin, who strongly opposed his nomination, saying he was unfit for the federal bench. In an amazing utterance, Schumer said, "This man is an embarrassment to be nominated," and "This guy is so far off the deep end." And finally, "I do not know why this man was nominated. What he thinks is so bad." Undeniably, the litmus test is as clear as it is unconstitutional: Practicing Catholics need not apply. Professor Michael McConnell of the University of Utah experienced this same climate of anti-Christian bigotry when President Bush nominated him to the Tenth Circuit Court of Appeals. McConnell is one of the nation's leading church/state scholars, and he has assisted the Christian Legal Society in certain religious freedom cases by authoring a number of "friend of the court" briefs. He is widely respected in his profession-three hundred law professors supported his nomination-and Harvard's Lawrence Tribe said that McConnell was "likely to display an ideal judicial temperament." Harvard's Elena Kagan said, "There is no part of Michael that is activist or extremist." But this support and more wasn't enough to insulate McConnell from stringent opposition from Americans United for Separation of Church and State (AU), the Human Rights Campaign (HRC), the National Abortion and Reproductive Rights Action League (NARAL), and People for the American Way (PFAW).
Kate Michelman, president of NARAL, described McConnell as "openly hostile towards women's rights" because of his criticism of Roe v. Wade. The Human Rights Campaign-which claims to be the largest national homosexual political organization-fiercely opposed McConnell. PFAW president Ralph Neas depicted McConnell as "dangerous," saying he was "hostile to key principles of separation of church and state and argues for extraordinary legal preferences and special rights to be granted to religious organizations." Furthermore, according to Neas, "McConnell is unrelentingly hostile to a constitutional right of reproductive choice and privacy."
Unlike some of his liberal judicial counterparts, McConnell said that he would honor Supreme Court precedent, even if he personally disagreed with it, because his oath of office would require it. He would not try to overturn Roe v. Wade at the circuit court level since it is the precedent of the United States Supreme Court and "settled law." "I am telling you under oath," testified McConnell during his confirmation hearings, "that I will conscientiously enforce the law, including laws and precedents that I don't agree with." Apparently, AU executive director Barry Lynn didn't take McConnell at his word. McConnell, said Lynn, "is an activist whose ideas are on the fringes of American political and judicial thought and an ideologue who lacks the temperament necessary for the federal bench." What seemed to bother Lynn was McConnell's transparent Christianity and his belief that Christian principles underlie America's freedom tradition-a point detailed in Chapter Eleven of this book.
Lynn was also concerned that McConnell "characterized John Aschroft's remark... that Americans 'have no king but Jesus' as'beautiful' and continued that 'freedom flourishes' only 'when man is subordinate to God."' Lynn said he doesn't "quarrel with his right to hold such a theological view, but it would make him a better candidate for a preaching job than a position on a federal appeals court." It's hard not to conclude that Lynn believes that those with a committed
Christian worldview are unsuited for the judiciary. "McConnell may be the religious right's dream nominee, but he's a nightmare for all Americans who treasure the Constitution," said Lynn. "The president's nomination of Michael McConnell for the federal bench represents a terrible assault on American freedom." Contrary to Lynn's assessment, McConnell has made a career out of championing religious freedom-but he believes the Free Exercise Clause should not be smothered by an extremist interpretation of the Establishment Clause. Despite the opposition, McConnell, unlike so many other conservative nominees, was confirmed.
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