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The Senate's quiet shift on religious freedom vs. abortion

Analysis by Zachary B. Wolf, CNN
Updated 12:02 AM ET, Tue October 13, 2020

"(CNN)Supreme Court confirmation hearings kicked off Monday and that arguably wasn't the biggest news event of the day.

We could give that nod to the surge of Covid-19 cases, the return of President Donald Trump to the campaign trail or the more public break between Trump and Dr. Anthony Fauci.

Perhaps it's because Amy Coney Barrett's confirmation feels, for now, very likely. The meat of the hearings will happen Tuesday, when Barrett takes questions from senators.

Fait accompli -- As South Carolina Republican Sen. Lindsey Graham pointed out, it's very likely to be an almost completely partisan affair, with Republicans placing her on the bench ASAP, and Democrats sour that while they they represent a larger portion of Americans, they so often seem to get outsmarted by Republicans more adept and wily at exploiting the rules.

Barrett's has already told us how she'll rule on the bench. Scalia's ideology is her ideology, she's said, praising the justice for whom she once clerked.

A Catholic majority on the Court. I personally am amazed at the fact that Barrett will cement not just a conservative majority, but also a Catholic majority on the court.

That's particularly incredible since we've only ever had one Catholic president. (That was JFK. Joe Biden would make two). And in Congress, fewer than a third of members are Catholic.

According to the Congressional Research Service:
    54.9% of Members (233 in the House, 60 in the Senate) are Protestant, with Baptist as the most represented denomination, followed by Methodist;
    30.5% of Members (141 in the House, 22 in the Senate) are Catholic;
    6.4% of Members (26 in the House, 8 in the Senate) are Jewish;
    1.9% of Members (6 in the House, 4 in the Senate) are Mormon (Church of Jesus Christ of Latter-day Saints);
    2 Members (1 in the House, 1 in the Senate) are Buddhist, 3 Representatives are Muslim, and 3 Representatives are Hindu;
    Other religious affiliations represented include Greek Orthodox, Pentecostal Christian, Unitarian Universalist, and Adventist.

And yet, as Ron Brownstein recently wrote for CNN, if Barrett is confirmed:
"...that would mean all six Supreme Court justices appointed by Republican presidents were raised Catholic. Two of them -- Clarence Thomas and Neil Gorsuch, Trump's first nominee -- later attended Protestant churches as adults, although Thomas subsequently reverted to Catholicism."

This, he points out, is despite the fact that "Catholics represent a smaller share of the GOP's electoral coalition than both mainline and especially evangelical Protestants; those evangelicals are by far the party's largest religious faction, according to annual studies by the nonpartisan Public Religion Research Institute."

The proportion of Jewish justices is also larger than the percentage of Jewish lawmakers in the House and Senate.
There is one Protestant justice -- Gorsuch -- in a country that is majority Protestant.

Karl Rove, George W. Bush's top political counselor, told Brownstein that religion did not influence Bush's decision even though Bush ultimately selected two Catholic justices.

"That Roberts and Alito were Catholics was known but not a factor in their appointment, either for or against," he wrote. "Their judicial philosophy, character, record on the Federal bench, relative youth, even geography were discussed as considerations, not their religious affiliation. Identity politics concerns ('We better get an evangelical because they are 28% of our coalition and none of the last three Republican appointees have been evangelicals!') was not considered by 43."

I believe that's true for Bush and probably also for Trump. That leaves us to wonder why the court has become so dominated by a group of people who share one key trait.

How does this happen? Brownstein: "The Catholic dominance in these selections, many observers say, simultaneously reflects an ideological convergence and an institutional divergence.

The ideological convergence is that conservative Catholics, including those in the legal field, have displayed as much commitment to conservative social causes, particularly banning abortion, as evangelical Christians.

The institutional divergence is that there is a vastly stronger legal network -- from well-respected law schools to judicial clerkships to lower court appointments -- to provide conservative Catholics with the credentials required to obtain a Supreme Court nomination than exists for evangelical Protestants.

Should it matter? It certainly shouldn't matter what Barrett's religion is. She didn't mention it in her opening statement. And a key element of this country is supposed to be a government that favors no religion.

But it is a very big deal, particularly with Barrett. And not because she's apparently a member of a small, conservative religious group, People of Praise. It's because of abortion and the great likelihood that Barrett, who as CNN's KFile reported initially failed to disclose talks she gave to anti-abortion groups on Roe v. Wade, will join her conservative colleagues in rewriting US abortion law.

Questioning a judicial nominee on abortion rights is now equated with religious intolerance. Brownstein argues abortion has so unified religious conservatives -- Protestant and Catholic -- that now, criticism by Democrats of Barrett's position on abortion are attacked by Republicans as instances of religious intolerance.

Sen. Dianne Feinstein of California drew the line herself when she told Barrett in 2017 why Democrats opposed her. "Why is it that so many of us on this side have this very uncomfortable feeling that dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different," Feinstein said. "And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that's of concern."

Those comments, which have become something of a rallying cry by conservatives about religious intolerance, were absent from Feinstein's opening statement at Barrett's hearing Monday.

Feinstein didn't even mention abortion -- that issue that's been so important in American elections and jurisprudence since the 1970s.

Rather, Feinstein said Democrats would focus their time on Obamacare, which now seems more divisive than abortion, and the idea that if, as expected, Barrett sided with conservatives on the Court to dismantle the law, it would leave tens of millions of Americans without health insurance.

Read more on that from CNN's Joan Biskupic, who looks at Barrett's past comments disparaging the law and John Roberts' decision that protected it.

But it is a truly incredible thing that rights will play a minuscule role in the confirmation of a justice who may hold the power to change them so consequentially."

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