ACRU Senior Fellow Ken Blackwell co-authored this column appearing on the American Thinker website on May 6, 2010.
When Sonia Sotomayor was confirmed as an Associate Justice of the U.S. Supreme Court last year, the media was full of stories of an historic first, a barrier broken. The first Latina to serve on the high court is certainly something to note.
Justice Clarence Thomas was only the second black American to be nominated to the Supreme Court. His confirmation hearings, however, were hardly the stuff of "let's make history."
Senate Judiciary Committee Chairman Joe Biden, after promising Judge Thomas a fair hearing, enabled the worst kind of gutter rumor and "over the transom" innuendo to be introduced against the dignified and principled Clarence Thomas. All of this was broadcast on national television.
Protesting strongly against hearsay evidence being dragged in against him, Judge Thomas aptly labeled Biden's "star chamber" proceedings "a high-tech lynching." Thomas was confirmed by the narrowest Senate vote in a century.
When Woodrow Wilson nominated Louis Brandeis, at the beginning of the last century, the elevation of the first Jewish Supreme Court Justice was considered noteworthy. A century later, a Jewish Justice hardly evoked media comment. By 1991, it seemed we were well into the period where Supreme Court nominations were seen as marks of respect for this or that ethnic group.
With Justice John Paul Stevens' retirement, however, we have come to another milestone. Stevens, who will be 90 this June, is the last Protestant serving on the Supreme Court. In a nation once overwhelmingly Protestant, this alone might occasion comment.
It's not as if the Protestants have gone the way of the passenger pigeon. There are still hundreds of millions of them in America. But the largest group among Protestants is no longer the Methodists; it's the Evangelicals. How many of these are there? Because our U.S. Census has never asked about religion, it's difficult to say with precision. A liberal publication, Public Eye Magazine, recently put the number at between 25% to 45% of the U.S. population.
Liberals certainly are trying to dig more deeply into that figure, earnestly searching for ways to speak to a diverse community that could number as many as 135 million Americans.
Would even one of these Evangelicals wind up on President Obama's short list for nomination to the U.S. Supreme Court? Don't bet on it. During the bruising Senate Judiciary Committee battles over the appointments of President George W. Bush, Sen. Chuck Schumer (D-L-NY) made sure to "drill down" on nominees' and potential nominees' views. Schumer made sure Miguel Estrada was sidetracked early, before he could qualify as Bush's nominee to the Supreme Court. Liberals were not about to let Bush nominate the first Hispanic to the high court.
Schumer also bored in on the "deeply held beliefs" of Bush nominees. That's what happened to Charles Pickering. Named to the federal district court by the senior President Bush, Judge Pickering was also President of the Mississippi Baptist Convention, an Evangelical church body that called for a correction of Roe v. Wade's rule of abortion-on-demand.
That was enough for Sen. Schumer, who developed his own version of a religious test. In Schumer's view, it was perfectly fine for nominees to profess a personal religious faith so long as it never affected their worldview. Schumer made sure Judge Pickering never survived long enough to serve on the Appeals Court.
President Barack Obama and Sen. John Kerry, of course, can express their opposition to men marrying men. That is their official position. No problem. If, however, Gov. Mike Huckabee, an Evangelical, or Gov. Bobby Jindal, a Catholic, takes the same position, both are to be opposed because of their "deeply held beliefs." In other words, they really mean it.
So, today we will see a new NENA: No Evangelicals Need Apply. To our shame, America once had an old NINA. That was the sign prominently posted in Massachusetts factory windows that meant "No Irish Need Apply." John F. Kennedy's election as president was a time of rejoicing for millions of Irish and Catholics in this country. That old NINA bias had been overcome. For black Americans, similarly, the election of Barack Obama represented a widespread belief that "our time has come."
In a time of increasingly unembarrassed ethnic identity politics, there is one notable exception: a serious Evangelical will not be seriously considered for the U.S. Supreme Court. There has not been a prominent Evangelical on the court since John Jay, the first Chief Justice. Evangelicals have been passed over so many times that it's as if they're invisible. Mercifully, there was one prominent Evangelical named by Barack Obama: Rev. Rick Warren got to deliver the invocation at President Obama's historic Inauguration. But Rick Warren was gone by one o'clock!