Jewish World Review August 29, 2003/ 1 Elul 5763

Charles Krauthammer

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A Judge Prejudged | On Wednesday Alabama Attorney General Bill Pryor oversaw the removal of the Ten Commandments monument from the rotunda of the state Supreme Court building. Pryor believes that the court ruling ordering the removal was incorrect. After all, the U.S. Supreme Court building itself has depictions of the Ten Commandments. The court opens its sessions with an invocation of G-d. And we know the other familiar elements of state-sponsored religion in America, from the chaplains in Congress to "In G-d We Trust" on the coinage.

Despite his personal views, Pryor was unequivocal in ordering the removal. He was equally unequivocal in his reason for doing so: The rule of law supersedes everything. And when a federal court issues an order, there is no standing in the schoolhouse door. For his pains, Pryor was picketed by 150 religious protesters calling for his resignation.

Pryor has more recently been attacked from a different quarter. Senate Democrats have blocked his nomination to the 11th U.S. Circuit Court of Appeals on the grounds of his personal beliefs. "His beliefs are so well known, so deeply held," charged his chief antagonist, Sen. Charles Schumer, "that it's very hard to believe -- very hard to believe -- that they're not going to deeply influence the way he comes about saying, 'I will follow the law.' "

An amazing litmus test: Deeply held beliefs are a disqualification for high judicial office. Only people of shallow beliefs (like Schumer?) need apply.

Of course, Schumer's real concern is with the content of Pryor's beliefs. Schumer says that he would object to "anybody who had very, very deeply held views." Anybody? If someone had deeply held views in favor of abortion rights, you can be sure that Schumer would not be blocking his nomination. Pryor is being pilloried because he openly states (1) that Roe v. Wade was a constitutional abomination, and (2) that abortion itself is a moral abomination.

These views may not be majority views, but they are not eccentric. Roe v. Wade has been widely criticized by liberals, from Michael Kinsley ("a terrible decision") to legal scholar Jeffrey Rosen ("Justice Harry Blackmun's famously artless opinion") to Ruth Bader Ginsburg, who noted that it short-circuited the political process and prevented a "stable settlement" of the issue. And, of course, non-liberal commentators have filled libraries anathematizing Roe for having launched a social revolution on the back of one of the flimsiest, most willful constitutional inventions in American history.

As for the morality of abortion itself, Pryor's view is identical to that of the Roman Catholic Church, a not insignificant religious sect. Pryor's view is also shared by hundreds of millions of Orthodox Jews, Christians and Muslims worldwide.

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Pryor's position may not be the majority view at Schumer's Upper West Side fundraising parties. But it is neither extreme nor eccentric.

There are two grounds on which one's views on personal moral issues such as abortion should disqualify a candidate for judicial office: if they are indeed extreme or eccentric, or if these personal beliefs distort the candidate's judicial actions and compromise his fidelity to the Constitution and the rule of law.

Pryor's views on abortion meet neither of these criteria. In fact, one of Pryor's former law partners, Larry Childs, points out that when Alabama passed a law banning partial-birth abortion in 1997, Pryor, as attorney general, instructed local district attorneys to interpret the law narrowly in order to conform with Supreme Court rulings -- a position that drew the ire of pro-life groups.

"His integrity has been unblemished," Childs told the Atlanta Journal-Constitution. "As attorney general, he has taken every issue that has arisen and dealt with it absolutely straight on the law."

Senate Democrats are opposing Pryor for the content of his beliefs about abortion, a political sin made doubly abominable in the view of Schumer because they are so sincerely and deeply held.

Is Schumer therefore anti-Christian or anti-Catholic? No. But the net effect of Schumer's "deeply held views" litmus test, now slavishly followed by his fellow Senate Democrats, is to disqualify from the bench anyone whose personal views of abortion coincide with those of traditional Christianity, Judaism and Islam.

This test is not a religious test. It's an ideological test -- that has the obvious effect of excluding from the bench tens of millions of believers who suffer from "very, very deeply held views."

The Schumer test is thus not a violation of the Article Six prohibition against religious tests for office. It is simply a clever way to get to the same result.

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