Litmus test?

Richard A. Sokerka

Within minutes of President Trump’s announcement July 9 that he would nominate Judge Brett Kavanaugh to serve on the Supreme Court, came the hues and cries of opposition to his choice.

Immediately, the Democrats marshalled the troops with their scare tactic that if Kavanaugh sat on the Supreme Court, it would mean the end of Roe v. Wade and abortion on demand. “I’m going to fight this nomination with everything I’ve got,” said Senate Minority Leader Chuck Schumer (D-NY). He said confirming Kavanaugh “would reverse decades of settled law and put women’s reproductive rights at grave, grave risk,” arguing that Kavanaugh (in his opinion) would vote to overturn Roe v. Wade. Sen. Patty Murray (D-Wash.) said that Trump’s nominee “would bring us back to the day when women had to go to back alleys for healthcare.” Really?

Stirring up another national debate about reproductive rights and making abortion the litmus test for the Senate confirmation hearings for Judge Kavanaugh is a huge misstep by Schumer and his ilk.

In a letter to members of the Senate July 6 (prior to the President’s selection of a nominee), Cardinal Daniel N. DiNardo, president of the U.S. Conference of Catholic Bishops (USCCB), urged them not to use support for Roe v. Wade as a litmus test for judicial nominees in their deliberations.

The letter made clear that the USCCB “does not support or oppose confirmation of particular presidential nominees.” Instead, the letter expresses “grave concerns about the confirmation process…being grossly distorted by efforts to subject judicial nominees to a litmus test in support of Roe, as though nominees who oppose the purposeful taking of innocent human life are somehow unfit for judicial office.”

“By any measure,” the Cardinal wrote, “support for Roe is an impoverished standard for assessing judicial ability. For 45 years, Roe has sparked more informed criticism and public resistance than any other court decision of the late 20th century.”

The letter points to decades of polling showing that most Americans oppose Roe’s policy of unlimited abortion, to a growing number of state legislatures passing pro-life laws, to mainstream medicine rejecting abortion, and to many legal scholars who support abortion who have criticized Roe for not being grounded in the U.S. Constitution.

“If a Supreme Court ruling was wrongly decided, is widely rejected as morally flawed and socially harmful, and is seen even by many supporters as having little basis in the Constitution, these are very good reasons not to use it as a litmus test for future judges.”

Lurking in the weeds is that those opposed to Kavanaugh will likely resort to calling his Catholic faith into question as a reason why he should not be confirmed. Kavanaugh unabashedly noted his strong Catholic faith in his speech after the President nominated him.

Kavanaugh highlighted his commitment to service, both in and out of the courtroom. He made special mention of Msgr. John Enzler, president and CEO of Catholic Charities, who was present at the announcement. “Forty years ago, I was an altar boy for Father John,” said Kavanaugh, adding that they now serve the homeless together through his work with Catholic Charities.

Cardinal DiNardo ended his letter to senators with these words: “A nominees’ faith should not be used as a proxy for their views on Roe. Any religious test for public office is both unjust and unconstitutional.”

Former President George W. Bush called Kavanaugh “a brilliant jurist who has faithfully applied the Constitution and laws throughout his 12 years on the D.C. Circuit. He is a fine husband, father, and friend — a man of the highest integrity.”

We hope those opposed to him will end their contentious criticisms based on their scare tactics and not attempt to impugn a good man’s integrity and his faith based on their ill-advised efforts to sidetrack his nomination.