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Melissa Rogers

Thanks for flagging my piece, Professor Shiffrin. I don’t dismiss the notion that a person’s religious background and beliefs may play some role in forming or influencing his or her judicial philosophy and views on particular issues. But I do reject the idea that simply knowing a person’s religious affiliation (or lack thereof) provides reliable insight into that person’s judicial views. As you note, Justice Brennan was Catholic; so is Justice Scalia. Chief Justice Rehnquist was Protestant; so is Justice Stevens. For this and other reasons, I think it’s difficult to argue that Justice Stevens’ record reflects a Protestant identity.

Asking judicial nominees how their moral or religious views would affect their judicial philosophy and decision-making avoids the problem of assuming that particular religious affiliations necessarily lead to particular judicial views and focuses on the potential impact of a broad set of personal views on judging. Thus, as I said in my essay, I believe those kinds of questions are appropriate. Further, if a nominee sees a clear connection between their religious background and views and their judging, I’d certainly want to know that, and I’d like to hear about their understanding of how the Establishment Clause applies to those matters. My guess, however, is that most nominees would say they strive to separate their personal religious views from their judging and leave it at that. Perhaps a more extensive discussion might ensue if further questions focus on the connection between moral beliefs and judging, as you suggest.

Finally, I’d just say that I continue to be more optimistic than you are about the prospect of Kagan answering religion-clause questions like the ones I set forth in my essay. She may well decline to answer questions about whether the Supreme Court correctly decided particular cases, but my guess is that, if asked, she would provide answers of some kind to the more general questions I posed and that those answers could be helpful (even if not fully satisfactory), particularly because Kagan has not focused on these issues in her scholarly writing. Of course, whether a Senator will ask questions like these remains to be seen.

In any case, thanks for your comments on my piece and for this engaging post.

Steve Shiffrin

Ms. Rogers,  thanks so much for replying to my post. I did not mean to imply that you think that a persons religious background would notplay some role in their philosophy and ruling - though, to my regret, my post can reasonably be read that way. I meant to respond to those
who think that a persons politics dictate their religious views, but not the other way around. They typically think that the Brennan/Scalia contrast shows that.
I do wonder what Stevens might say if were asked whether he thought his religious upbringing and/or beliefs had influenced any of his judicial interpretations. I also think it is possible that he or any justice might not have the self knowledge to trace the ways in which they had
been influenced. 
I am more pessimistic about the degree to which Kagan will open up in the confirmation process though I agree that the questions you raise would be good to ask (I actually think though that she should not answer whether Smith was rightly decided because that hopefully will
come to the Court again though she could discuss the issues in thatcase and she should discuss the relationship between the clauses if asked, as you point out). On the other hand, I would be more than delighted to be wrong about this. As I wrote in another post, "I fear
that we will see another judicial nomination hearing
in which the Democrats will cater to the Republican fiction that Justices on the Supreme Court routinely face cases in which they are just calling balls and
strikes. Must we witness another round of flirtations with perjury? I hope not. http://www.religiousleftlaw.com/2010/05/depressing-thoughts-about-the-kagan-nomination.html.
Thanks again for your comment here and your column at the Post.

Melissa Rogers

Thanks, Steve. I’m afraid I’m only more optimistic about the confirmation hearings in the sense that I think Kagan will respond to broad questions with answers that have some substantive content and that that will give us more information than we have now about her views on matters like the religion clauses. I too hope a future Court revisits Smith, but I also think Kagan could offer some tentative views on that case without getting herself into trouble. In any case, I hope some Senator discusses the Smith case (or at least free exercise issues generally) so that these issues get some needed attention.

Thanks again your work here and elsewhere on these issues.



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