Dear Senator Leahy:
Because you’re the ranking Democrat on the Senate Judiciary Committee, your performance during the upcoming Supreme Court confirmation hearings for Judge John Roberts will tell the country a lot about the constitutional and moral priorities of the Democratic Party and the party’s sense of fair play.
As one Catholic to another, permit me to suggest that you also have an opportunity, indeed a responsibility, to insure that Catholic-bashing, overt or subtle, does not spill over into the Judiciary Committee’s deliberations from the activists’ battle-of-the-blogs and the food fights on cable TV.
Shortly after Judge Roberts’ nomination, President Bush was accused of “playing the Catholic card” in an opinion piece widely circulated in the blogosphere. “Playing the Catholic card” is, to be frank, either a vulgar appeal to ancient prejudices or code-language for “someone who can’t be trusted to take Planned Parenthood’s position on abortion.” In a news story chronicling Roberts’ work as deputy solicitor general, the Associated Press went out of its way to describe the nominee as a Catholic. Referring to Judge Roberts’ Catholicism in a news story in which that fact is wholly irrelevant is yet another example of barely disguised prejudice or warning-shot-by-code-language.
An overreaction? I think not. Consider what would have happened if, after nominating Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court, President Clinton had been accused of “playing the Jewish card”? Suppose the Associated Press had run a news story in these terms: “Ruth Bader Ginsburg, a Jew, once wrote an ACLU legal brief on the constitutional status of Roe v. Wade”? There would have been outrage, and it would have been wholly justified. American civil society simply will not permit public displays of thinly veiled anti-Semitism. In your work before and during the Roberts confirmation hearings, perhaps you could challenge America to rid itself of vestigial anti-Catholicism — which, as historian Arthur Schlesinger, Sr., once observed, is the most deeply rooted prejudice in the history of the United States.
Permit me to raise another concern. In late July, you told a Vermont radio show that you wouldn’t vote to confirm a nominee who “didn’t consider Roe v. Wade settled law.” You then compared Roe to Brown v. Board of Education, the epic civil rights case that rejected “separate but equal” public education as unconstitutional. I suggest that you have the wrong analogy here. The correct analogy is between Roe and Plessy v. Ferguson, the 1896 decision that created the “separate but equal” doctrine. Now there was “unsettled law;” there was a decision that cut across the grain of basic principles of justice; there was a decision that roiled our politics for generations, until Brown effectively reversed Plessy in 1954. Plessy, in a word, was the Roe of its time: a case wrongly-decided on a fundamental issue.
There is nothing “settled” about Roe v. Wade, which liberal constitutional scholars like Archibald Cox and Alexander Bickel deplored as judicial overreach in 1973. Roe ignited the most divisive debate in our national politics — just as Plessy eventually did. Because Roe got it so wrong on such a basic point of justice — does innocent human life deserve the protection of the law? — it has endlessly distorted other aspects of our law and our politics: again, just like Plessy did. Roe no more “settled” the abortion debate than Plessy settled the question of racial justice in America. To suggest otherwise ignores the evidence all around us.
One final thought: in these hearings, I trust that you (and Senators Biden, Durbin, and Kennedy) will not reinforce the Kerryesque canard that the Catholic opposition to abortion is a sectarian matter, analogous to Mormons trying to “impose” a ban on caffeinated beverages throughout the United States. The Catholic argument is not complicated: the product of conception is a genetically unique human being; that human being never will be anything other than a human being; as innocent human life, it is inviolable and deserves the protection of the law. That’s it. You don’t have to believe in seven sacraments or papal primacy to engage that argument.
Please remember that in the weeks ahead.