washington | Jewish groups are scrambling to position themselves on everything from the separation of religion and state to social justice issues in response to the nomination of Judge John Roberts to replace the late Chief Justice William Rehnquist.
The new vacancy, as well as Roberts’ additional position, “dramatizes the seriousness of what the debate of the future of the court is really about,” said Rabbi David Saperstein, director of the Religious Action Center for Reform Judaism.
This is particularly true for those who view Roberts’ policy positions as too conservative for the court. The chief justice holds limited power over the other eight justices, but does control who authors opinions when he is in the majority. That could affect how opinions are written, and the jurisprudence made by them. In addition, the chief justice wields considerable influence over the federal court system.
The future of the court, analysts say, will largely depend now not on Roberts, but on whom Bush names to replace Justice Sandra Day O’Connor, who will remain on the court until a replacement is confirmed. While Rehnquist was a reliable conservative who is now being replaced by a conservative, O’Connor is viewed as the moderate core of the court.
Replacing her with another conservative would shift the court squarely to the right on issues such as the separation of church and state and abortion rights; replacing her with a moderate would keep the court close to where it has been in recent years.
“It opens the door up for President Bush to look at this next vacancy and put in a more moderate candidate,” said Phyllis Snyder, president of the National Council of Jewish Women, which opposes Roberts.
Defining the line that separates church and state was one of the hallmarks of the Rehnquist court. The chief justice, joined by two other conservatives and two centrist jurists, consistently allowed government funding of religion, including school vouchers. But the court stopped short of allowing public religious exercises like school prayer, despite Rehnquist’s support for the practice.
At the same time, the Rehnquist court will be remembered for limiting special protections for religion and for undoing protections for religious expression that were sanctioned by previous justices.
Rehnquist’s deepest impact may lie in the area of church-state separation. The court set a high bar for proving the government was endorsing religion, ruling in 1989 that a depiction of the nativity in a county courthouse endorsed religion, but saying a menorah and Christmas tree on display outside the court did not.
“As long as it treats all religions equally, he would argue nothing in the establishment clause prevents supporting religion and endorsing religion,” said Saperstein, who is also a constitutional law professor at Georgetown University.
Rehnquist’s opinions made uncomfortable the large majority of the American Jewish community that seeks a strong wall separating church and state. Orthodox groups often took the alternative view, seeking increased governmental support and funding for religion.
Liberal Jewish leaders are quietly expressing hope that Attorney General Alberto Gonzales will be named to replace O’Connor. Gonzales has been criticized in some Jewish camps for his work as White House counsel on the encampment of prisoners at Guantanamo Bay, Cuba, but he is seen as more moderate than other jurists Bush considered for the high court earlier this summer.
Jewish groups did not appear to be planning new advocacy campaigns. Many — including the American Jewish Committee and the Anti-Defamation League — choose not to endorse or oppose presidential nominations, and have sent letters to lawmakers, stressing questions they would like asked about Roberts’ record.
On the other side, some concerns have been raised about lawmakers disapproving of Roberts because of his strong Christian beliefs. The Becket Fund for Religious Liberty suggested this week in a full-page ad in The New York Times that a religious test for nominees would bring the United States back to the 19th century, when Catholics were thought to be loyal to the pope, and Jews were seen as untrustworthy.