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Catholics move to the center of the bench


Sometime in the early 1940s, my father returned from a business trip and announced to his family: “Shake the hand that shook the hand of Justice Frank Murphy.” During that same trip, he stopped in Kansas City, Mo., and was introduced to Harry Truman, who had been a senator from that state since 1934. But my father had barely heard of him. It was Murphy, the only Catholic on the Supreme Court, that caught his baptized eye.

It was a period in Catholic thinking during which we celebrated Catholic all-American ping-pong teams. Besides, Murphy, a former mayor of Detroit, governor of Michigan and U.S. attorney general, was only the fifth Catholic to serve on the court since it was established in 1789, a period of 151 years. The Jews had to wait 127 years until Louis D. Brandeis, the first Jewish justice, was appointed by Woodrow Wilson in 1916. Compare that to the 32 Episcopalian behinds that have warmed the bench since George Washington appointed John Jay (Episcopalian) in 1789.

Now comes George W. Bush, who sees at least one vacancy on the court (maybe two) at the end of the present term. Seven of the nine justices have been appointed by Republican presidents, but the president is uncomfortable with any Dem-ocrats hanging around. It is likely that William Rehnquist, Lutheran and chief justice, who is almost 79, will leave the court after 31 years. Further, Sandra Day O’Connor (Episcopalian), who will be 73 in 2003, is making sounds that she may return to her California home.

The oldest justice is John Paul Stevens, an 82-year-old Protestant with a Catholic wife. However, he has given little indication that he’s ready to hang up his gavel. Further, with an average age of nearly 69, these nine justices could almost compete with the College of Cardinals. The aging court could use a bladder control prayer group. Any one of them could make the Last Judgment at any time.

According to The New York Times, President Bush has staffers making lists of potential candidates in order to meet the late spring deadline and to mount a strong defense of his choices who will likely be even more conservative than he is.

At the moment, the front-runner for the first vacancy is Alberto R. Gonzales, a White House counselor and former legal adviser to Bush when he was governor of Texas. Reports suggest that Harvard Law School graduate Gonzales, who came from a poor Texas family, has the requisite loyalty and philosophical conservatism that Bush craves. More important, if nominated and approved, he would be the first Hispanic to serve.

President Bush needs Hispanic votes. The nation now has over 35,300,000 Latinos -- most of them with roots in Mexico. His brother, Jeb, governor of Florida, is married to a Latina-American and has converted to Catholicism. Jeb helped to deliver Florida’s electoral votes, the ones that put George in office, even though he lost the general election. Allegedly, Gonzales wants the post. Even now, his staff suggests that he likes to be addressed as “Judge Gonzales.” He is conservative, antiabortion -- and Catholic.

Two other possible candidates are Samuel Alito, judge of the appeals court in Newark, N.J. However, Alito is Italian-American as is Justice Antonin Scalia. Alito once clerked for Scalia and earned the nickname “Scalito.” Then, there is Miguel Estrada, perhaps a more reliable conservative than Gonzales. The hard-nosed conservatives don’t amount to that big a political block, however.

It’s just that they’re louder and Bush is fearful of them. In any case, all three potential justices are Roman Catholics.

That suggests there may be four, maybe five Catholics on the court by next spring -- an extraordinary shift. The new justice -- or two -- would join Scalia, Anthony Kennedy and Clarence Thomas.

There hasn’t been a Catholic chief justice in 82 years. Bush might prefer Scalia but the opinionated justice would have a hard time even with the new Republican Congress. He’s a brilliant justice but he shaves with his tongue. He could become another Robert Bork. Both Scalia and Kennedy will be 67 in 2003. And Clarence Thomas, 55 this year, is still recovering from the Anita Hill debacle. Further, he is regarded as a Scalia clone. (Thomas is a convert to Catholicism. He drifted away from the church for some 28 years but has returned, often attending Mass at St. Joseph’s on Capitol Hill, just behind the court.)

The first Catholic to serve was Roger B. Taney, son of a wealthy slave-owning family, who raised tobacco. Years later, as chief justice, he supported slavery even for descendants of slaves. This was a period during which some Catholic colleges and seminaries used slave labor (now called athletics). Taney, a former Federalist, was the fifth chief justice, appointed by Andrew Jackson in 1836. He served until 1864, long enough to incur the wrath of Abraham Lincoln.

Edward D. White of Louisiana was appointed to the court in 1894 by Grover Cleveland. He was named chief justice in 1910 and led the court until 1921. White graduated from the Jesuit College in New Orleans and then went on to Georgetown. He was the court’s ninth chief justice and was generally considered a conservative, although he did help to speed the advent of the eight-hour day for railroad workers. He was enshrined in Statuary Hall in 1955, together with 13 other Catholics.

Joseph McKenna, a William McKinley appointee, served for 26 years (1898-1925). He had been the U.S. attorney general but had little consistent legal policy. For a few years, he shared the bench with Pierce Butler, a Warren Harding ap-pointee from Minnesota, who served for 16 years (1923-39) and was generally considered a conservative.

Then came Frank Murphy, a New Deal Democrat, appointed in 1940 by Franklin D. Roosevelt. Prior to his nomination, he was widely recognized for his relief efforts. He left the court to serve in World War II but returned and served until 1949. The first -- and next to last -- of the Catholic liberals, he condemned the wartime imprisonment of the Japanese.

William J. Brennan was recognized as a liberal Catholic judge. He served 33 years (1956-90) before retiring, sometimes drawing criticism from major bishops who were growing more conservative. He ruled often for a greater guarantee of justice for the poor. By the time he left the court, two other papist justices, Antonin Scalia and Anthony Kennedy, were serving.

The potential of the voting power of four Catholics on a nine-member court is worth pondering. Only one additional vote from a Jewish justice or a lonely WASP could produce some of the many 5-4 decisions. Ruth Bader Ginsburg, 69, second female and a Jew, was appointed by Bill Clinton in 1993. Stephen G. Breyer was appointed in 1994. (He does not list himself as Jewish by religion but is considered a cultural Jew.)

Unfortunately, the four Catholics are conservative, two of them -- Scalia and Thomas -- to the right of Attila the Hun (a devout barbarian), and two others -- Kennedy and (maybe) Gonzales, leaning to the right. There are no Murphys or Brennans.

Presently, there are issues such as capital punishment, just war, abortion, disabilities, immigration, school vouchers, welfare, wages, homosexual unions, sodomy, fair employment and college admissions practices, and so on, that need to be sorted out. Responses all have roots in church teaching but, with the exception of abortion and cloning, it doesn’t seem to matter much anymore. The situation is not unlike the laity’s response to Humanae Vitae, the encyclical on birth control. The bishops continue to rant about birth control but the Catholics in the pew pay no attention. Neither will the justices.

Just when Catholic justices have moved to the center of the bench, it doesn’t seem to matter if they are Cath-olics or Rosicrucians. It’s a shame. My long-deceased father, who finished only grammar school, would not have washed his hands for decades after shaking the hands of four Catholic justices.

Tim Unsworth writes from Chicago where he heads a CCD program for hobbits. You can shake his hand at unsworth@megsinet.net

National Catholic Reporter, January 24, 2003