The Philadelphia Jewish Voice
The Delaware Valley's Progressive Alternative
Volume 1 - Number 2 - August 2005
Washington, DC: (NJDC) Tonight's announcement by President Bush that he has nominated Judge John Roberts to replace Sandra Day O'Connor marks the end of the President's role in this constitutional process -- but it does not end the process designed by the Founding Fathers.
"The Senate must fulfill its constitutional obligations and ensure that Judge John Roberts' vision of the separation of church and state is appropriate and consistent with the Constitution, especially since he is being considered for a lifetime appointment to the highest court in the land," said National Jewish Democratic Council National Chairman Amb. Arthur Schechter. "All Americans, especially religious minorities, have a large stake in this nomination -- just as we have a large stake in the outcome of key Supreme Court cases on matters of church and state. Our system of law has protected us as American Jews, despite our status as a religious minority. Indeed, nowhere else in the world has all religion flourished so much or so diversely -- and this is true precisely because of the separation of church and state in America. Our Founders, though religious, understood the need to have no state religion.
"The U.S. Constitution does not grant the President alone, or even preeminently, the power to appoint Justices to the Supreme Court; instead, the Constitution says as plainly as possible that presidents can appoint justices only 'by and with the Advice and Consent of the Senate.' The Constitution in no way suggests that the Senate is limited in what characteristics it should consider when satisfying this constitutional obligation. To be sure, there is no textual basis for suggesting that the Senate must 'defer' to the President's suggestion, nor that it must limit its inquiry to issues of character and temperament.
"Unfortunately," Amb. Schechter continued, "the separation of church and state that guarantees every American's religious freedom is endangered. Under Justice Thomas' reading of the Constitution, for example, sectarian prayer in public schools would be fine. The Senate is obligated to determine whether Judge John Roberts would be a Justice in the mold of Justice Thomas, because more Justices like Clarence Thomas could easily bring about unthinkable changes that would imperil every American's religious liberty.
"As Alan Dershowitz wrote to NJDC supporters, any Justice of the Supreme Court must embrace key ecumenical principles: That the religious liberty protected by the First Amendment includes strong protections for the practices of even unpopular minorities; that such religious liberty is undermined if the government uses its coercive power and resources to compel people to support religious belief and practice to which they do not adhere; that an overwhelming majority of American Jews understand that a woman's reproductive decisions are personal ones between her, her mate, and her chosen spiritual and medical advisers; and that our Constitution reflects the principle that the federal government has the power, and even the obligation, to intervene in various aspects of economic life on behalf of the weak and the destitute.
"The vast majority of American Jews join most Americans in supporting these key principles," Amb. Schechter added. "The Senate has every obligation to explore Judge John Roberts' positions on these key constitutional principles, and to weigh his positions as senators provide their advice and consent."