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Column
Catholics move to the center of the bench
By TIM UNSWORTH
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
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