What follows is that if a nominee, perhaps while running for elective office,
has put his/her religious identity front and center ("I'm a committed Christian
who always asks what would Jesus do") then it is legitimate to ask questions
about that in a way that does not violate the No Test Oath clause.
My post was provoked, at least in part, by the habit of the NYTimes in
emphasizing the gender split on the Wheaton College order but wholly failing to
mention what strikes me, at least, as the elephant in the room.
Sandy
Sent from my iPhone
On Jul 11, 2014, at 1:35 PM, "Marty Lederman"
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
Sandy's very provocative post is here:
http://balkin.blogspot.com/2014/07/the-elephant-in-room.html
As to which I would ask Sandy this:
As I read your post, the "elephant in the middle of the room" is that there is
an elephant in the middle of the room, and that the elephant makes decisions on
how to act, in part, based upon its history and perspective as an elephant.
OK, but what follows from that? Surely not that Presidents should appoint
fewer elephants. If it's that Presidents should be indifferent as to nominees'
religion, I wholly concur. (Indeed, Article VI virtually requires such
indifference.) But that's not much of an issue these days, is it? Bush 43 did
not appoint Roberts and Alito, for instance, because they were Catholic. He
appointed them because he approved of their foreseeable legal views -- views
that were in part shaped by their Catholicism, to be sure, but surely Bush was
indifferent to the question of what the various sources of their jurisprudence
might be.
On Fri, Jul 11, 2014 at 2:19 PM, Levinson, Sanford V
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:
For what it is worth, I have an extended posting on this on Balkinization,
balkin.blogspot.com<http://balkin.blogspot.com>
I strongly disagree with Larry Tribe on this issue.
Sandy
Sent from my iPhone
On Jul 11, 2014, at 1:10 PM, "Patrick Wiseman"
<pwise...@gsu.edu<mailto:pwise...@gsu.edu>> wrote:
It's my guess that it is exactly that kind of reductionism to which Prof. Tribe
was originally objecting.
Cheers
Patrick
What might follow is a serious discussion of whether, given life tenure and no
appellate review of their decisions, ever, the relationship between values and
law at SCOTUS is and always has been so egregiously out of whack that we should
recognize as Posner says the Court is a unique "political court," or as I have
written, it is not really a court at all.
Best,
Eric
Sent from my iPhone
On Jul 11, 2014, at 1:31 PM, "Marty Lederman"
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
If I might be so presumptuous as to shift the question somewhat:
Of course Justices' religion, and their experiences and learnings as adherents
of particular religions, affects their perspectives when they decide cases,
especially (but not limited to) cases involving religion (e.g., Town of Greece;
Hobby Lobby). If a religion had no such effect on its adherents, it would
hardly be worthy of the name, right?
So I don't think discussions of this question are or should be "off limits,"
yet I wonder . . . to what end? If we were all to agree that the Catholic and
Jewish Justices on the Court have very different perspectives on these
questions, in part (but not entirely) owing to their experiences and
understandings as Catholics and Jews, what, exactly, follows from that?
On Fri, Jul 11, 2014 at 1:17 PM, John Bickers
<bicker...@nku.edu<mailto:bicker...@nku.edu>> wrote:
When a Justice notes in oral argument (Salazar v. Buono) that the Cross is not
limited to Christianity but is simply the default memorial because it is "the
most common symbol" of the dead, how can it not be the case that the justices'
life experiences--jobs, schools, politics, faith--are playing a role in how
they decide cases?
John Bickers
Salmon P. Chase College of Law
Northern Kentucky University
________________________________
From:
conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>
[conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>]
on behalf of Myron Moskovitz [mmoskov...@ggu.edu<mailto:mmoskov...@ggu.edu>]
Sent: Friday, July 11, 2014 1:04 PM
To: CONLAWPROF
Subject: Is Discussion of Justices' Religion "Off Limits"?
....
I replied that a judge's life experiences form at least part of his or her
approach to resolving cases, and it is na?ve to ignore this. Some Justices
expressly pepper their opinions and speeches and books with this fact. Thomas
does, Sotomayer does, and so do many others. A Justice of a minority religion
(whether Judaism, Muslim, Hinduism, or any other) might have had life
experiences that make him or her more likely to identify with citizens faced
with government-sponsored explicitly-Christian prayers.
Tribe apparently believes that such a discussion is "off limits." I don't.
Who is right?
Myron
Myron Moskovitz
Professor of Law Emeritus
Golden Gate University School of Law
Phone: (510) 384-0354<tel:%28510%29%20384-0354>; e-mail:
myronmoskov...@gmail.com<mailto:myronmoskov...@gmail.com>
website: myronmoskovitz.com<http://www.myronmoskovitz.com/>
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