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A Protestant judge's voice

Earlier this week, The Post’s Robert Barnes asked the provocative question: “Does President Obama’s next Supreme Court nominee need to be a Protestant?” Justice John Paul Stevens, nearing age 90, is the last member of the once-dominant American Protestant establishment remaining on the high court. His retirement would leave only Catholic and Jewish justices -- and leave the advocates of diversity in a quandary.

If religious diversity is a factor in selecting the next nominee, we can imagine the opening statement.

“Mr. Chairman, thank you for this opportunity to talk to you about my Protestant identity, where it came from, and the influence I perceive it has on my presence on the bench. Who am I? I am a proud member of the old-boy network, born and bred in the gated estates and prep schools of the Northeast. Like many of the best immigrants to this great land, my ancestors took a hard journey on the Mayflower, before eventually making their fortune in railroad speculation. My Protestant identity was forged and closely nurtured by my family through our shared experiences and traditions -- sailing off the Vineyard, touch football on Thanksgiving, long evenings of quiet repression. For me, a very special part of my being Protestant is the cuisine -- peanut butter and grape jelly on white bread, lots of pork, meat on Fridays and those little wafers at communion….

“America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity. Yet we simultaneously insist that we can and must function and live in a race- and color-blind way. That tension between the ‘melting pot and the salad bowl’ is being hotly debated today. I prefer, by the way, plain iceberg lettuce. Sometimes arugula, when I’m in an adventurous mood. I am proud that my Protestant identity inspires how I live my life….

“The aspiration to impartiality is just that -- it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Justice O’Connor has often been cited as saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases. I am not so sure that I agree with the statement. I would hope that a wise, Protestant man with the richness of his experiences would more often than not reach a better conclusion than someone who doesn’t know their fish fork from their salad fork….”

I don’t imagine these remarks would be well received. But the prospect does raise some interesting questions. If diversity is an important value in choosing justices, why doesn’t America’s largest religious group deserve representation on the Supreme Court? Is it justified to punish Protestants for their past dominance by rending them voiceless?

It is, in the end, a false issue. I suspect that most who want diversity in the courts are not so much interested in promoting diversity as in promoting liberalism. I also suspect that Justice O’Connor is exactly right. Impartiality in applying the law is the first duty and main measure of a judge, whatever his or her background.

By Michael Gerson  | March 11, 2010; 12:03 PM ET
Categories:  Gerson  | Tags:  Michael Gerson  
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Ain't no thang. We just went through a period where the only Protestants were PINO types ~ Episcopals, for example, simply don't count as Protestants to the overwhelming majority of Protestants.

To a great degree the USSC has been a predominantly Catholic operation for the last century, and maybe longer.

The really big breakthrough is going to come when we get a Pentecostal or a Hindu on the court.

Posted by: muawiyah | March 11, 2010 12:37 PM | Report abuse

As Mr. Gerson, for a change, accurately writes, he has himself set up a straw person. It should be noted, however, that there is a very large segment of Americans who have NEVER been represented on the Supreme Court of the United States -- people of no particular faith.

One thing we DON'T need is yet another person whose decisions are driven at least as much by theology or ideology as they are by law. And this would likely eliminate fundamentalists and pentecostals and anyone who rejects the separation of church and state or who thinks that their idiosyncratic interpretation of "God's law" trumps actual law enacted by Americans.

Posted by: edallan | March 11, 2010 12:56 PM | Report abuse

"punish protestants"? "promote liberalism?" nonsense. we need atheists and agnostics on the bench, clear headed and thoughtful people who don't let silly religious "beliefs" dominate our great country.

Posted by: alexnjan20 | March 11, 2010 12:56 PM | Report abuse

I fine this Gerson line interesting: It is, in the end, a false issue. I suspect that most who want diversity in the courts are not so much interested in promoting diversity as in promoting liberalism.
It is just your suspicion but I do believe most who want diversity in the courts would just like a court that reflects the diversity in this country. Also this mini saga about not having a protestant on the court is much to do about nothing. If it were an instance were generation after generation there were no protestant on the court then there may be an issue but that's not the case. If a protestant were to not be on the court in the near future that would be an anomally not the norm. Until recently women and individuals not being in the court were the norm. There is a big difference there.

Posted by: 6thsense79 | March 11, 2010 1:07 PM | Report abuse

What about educational diversity? Once Stevens retires, all the remaining justices will have been educated at Harvard and Yale. I find it hard to believe that admissions decisions over 21-22 year old law school applicants seems to trump any actual accomplishments as a lawyer. In contrast to say, Thurgood Marshall, today, you become a Supreme Court Justice mostly by flying under the radar and protecting the powerful.

Posted by: mcstowy | March 11, 2010 1:19 PM | Report abuse

Was it not WASPs like the two Bushes that put most of those Catholics on the bench? Apparently they thought other criteria were more important?

Posted by: j2hess | March 11, 2010 1:22 PM | Report abuse

This is a peculiar commentary, given that the five most politically conservative justices now serving on the Supreme Court -- Roberts, Alito, Scalia, Thomas and Kennedy -- are all Catholic. Every one of them was appointed by a Republican President.

Justice Sotomayor is Catholic also. Like most Americans descended from the areas that the Spanish Catholic Church dominated for centuries, she inherited the Catholic faith; the great majority of religious Hispanics who might be appointed to the Court are perforce likely to be Catholic. Sotomayor might be called a "diversity pick," her substantial credentials nothwithstanding, but she is an exception on the Court.

The five conservative Justices mentioned above were confirmed with the enthusiastic support of nominally Protestant (and actually ecumenical) evangelical groups, for one primary reason -- as Catholics, they were assumed to be "good on abortion," the one issue more important to evangelicals than any other. Theologically indistinct and intellectually shallow, evangelical groups had no candidates of their own faith they preferred to the Catholics nominated by Presidents Reagan and Bush. As long as they passed the abortion litmus test and were otherwise reliably Republican, none of the conservative nominees was going to run into any religious objections from politically influential evangelicals.

This included Michael Gerson, whose appeal here for victim status on behalf of Protestants would be passing strange were it not for his past association with an administration that regularly appealed to its supporters for sympathy when criticized by "elitists" and "liberals."

Posted by: jbritt3 | March 11, 2010 1:24 PM | Report abuse

Doesn't anyone think that once this "loaded" court takes on an abortion decision that suddenly all the fundamentalists and evangelicals etc. will "wake up" and protest the Catholic majority? They are silent on this because it's just what they wanted: justices who cannot rule FOR abortion if they value their religion first.

I am just waiting for the day when all the Catholic judges who are bound by the Pope to choose their religion over secular rulings have to all recuse themselves from voting on this issue.

Otherwise, if I am wrong about all of this, then why no fundamentalist, evangelical, right wing wacko sound bites of extremism already? I'm not wrong. I've been around long enough to take a+b=c.

Posted by: maryiscontrary | March 11, 2010 1:33 PM | Report abuse

For true diversity on the court, we need a female, who attended a public university and law school, who grew up west of the Mississippi, and not from California. Protestant, but not devout in attendance. The court is full of Ivy League grads,who can't relate to a westerner.

Posted by: moverbat | March 11, 2010 1:44 PM | Report abuse

It's worth noting there's a difference between "Protestant" broadly defined and its subset, "WASP", to which I think Gerson means to refer. Millions of Americans are Protestants without enjoying the benefits of the gated estates, prep schools, old-boy network, etc. that Gerson mentions.

I was raised Protestant, and indeed am entirely Northern European. But my family came from laborer/yeoman stock and remain so after two centuries in Appalachia.

A Court nominee whose origin is hillbilly or great plains farm isn't going to think him/herself part of the Northeastern establishment.

Posted by: merladop | March 11, 2010 1:58 PM | Report abuse

I think we need a Zoroastrian next to maintain diversity.

Posted by: chopin224 | March 11, 2010 2:11 PM | Report abuse

Following this logic, why not say the next nominee to the SCOTUS must be a Muslim? And a Hindu? And a Wiccan? ... How nonsensical!

Posted by: DoTheRightThing | March 11, 2010 2:15 PM | Report abuse

My My, those who practice white supremacy are really having a hissy fit because a black president call the Supremacy Court, on the carpet for essentially, turning the entire electoral process over to the corporations. Now the SOTU speeches are no longer relevant... Ain't that rich? As long as the presidents of old praise, the political process of the status quo, everybody feels good about themselves. But the minute someone questions the veracity of the Supremacy Court, "we don't need no stinking SOTU speeches from no black president. Its embarrassing"...LOL!!!

Posted by: demtse | March 11, 2010 2:21 PM | Report abuse

Gerson: "It is, in the end, a false issue."

WaPo, how is it possible to publish, regularly, someone who violates the very first rule of journalism?

Posted by: abqcleve | March 11, 2010 2:22 PM | Report abuse

An utter non-issue. I don't care whether or not the next SCOTUS justice is religious (of whatever faith) or secular, male or female, black or white or . . . . In fact, I'd prefer that he/she be NOT particularly ideological. I do care that he/she has a fine mind, is articulate, thoughtful, high-principled, and DOES think about how the law of the land affects the people who live in that land.

Full disclosure: I'm a committed Christian who believes in SECULAR government and REAL separation of church and state.

Posted by: post_reader_in_wv | March 11, 2010 2:48 PM | Report abuse

it isn't the $upreme Corp. anymore,,its the U.S. Vatican Council..really sad..

Posted by: rmcgolden | March 11, 2010 3:50 PM | Report abuse

Why was this piece even published?

Posted by: jwyzalek | March 11, 2010 3:55 PM | Report abuse

"Why was this piece even published? "

- - - - - -

This piece was published because the publishers of the Washington Post feel that the architects, enablers, apologists, and war criminals of the Cheney-Bush Administration do not have enough venues to publish their self-justifications, apologia, propaganda, rewritings of history, and attacks on traditional American values.

Rather oddly, there wasn't enough money to keep Dan Froomkin on the payroll, but there IS money to pay Marc Thiessen (unless they are paying him and Gerson what they're worth?).

Posted by: edallan | March 11, 2010 4:14 PM | Report abuse

whats funny is that the U.S. Catholic church, the Bishops, are always putting the heat on Democratic politicians who are Catholic and want to withhold communion because of their views on abortion..but they say nothing about the 6 catholics on the supreme court who actually have the power to overturn roe v wade and do nothing.

Posted by: rmcgolden | March 11, 2010 4:22 PM | Report abuse

A good Rastafarian would be nice. Then maybe cops would stop spending most of their time busting kids for pot.

Posted by: coloradodog | March 11, 2010 4:33 PM | Report abuse

And just what percentage of America's Protestants are the wealthy Northeasterners of this stereotype?

I would venture to guess that for every wealthy Northeastern Protestant there are probably a hundred middle class or poor Protestants in the land.

Posted by: joehlindsay | March 11, 2010 4:37 PM | Report abuse

How something as ethereal as religion should have ANYTHING to do with the application of laws is mind-boggling. I can’t stand Scalia or Roberts, but I don’t blame their religion for their 20th century jurisprudence in 2010.
But Protestants are the last people that should have any power. Last time they did they single-handedly slaughtered hundreds of 1000s of Native Americans.
Give me a voodoo priest, an animist, or a Buddhist. That would be diversity.

Posted by: thadude33 | March 11, 2010 4:53 PM | Report abuse

"To a great degree the USSC has been a predominantly Catholic operation for the last century, and maybe longer. "


Abortion and death penalty rulings do not display a Catholic bias at all. I would avoid making unsubstantiated sectarian remarks.

Posted by: terencef100 | March 11, 2010 5:37 PM | Report abuse

For real diversity, and as a way to improve the intellectual quality of the court, Obama should nominate an atheist. WE have had enough of people who believe superstition, or pretend to,

Posted by: lowercaselarry | March 11, 2010 5:40 PM | Report abuse

How about someone who DOESN'T believe in an angry Magic Father Figure in the Sky? Isn't it about time we moved into the 20th century - let alone the 21st? When do we finally embrace rationality? Do we have to keep endorsing unmedicated schizophrenia as a national lifestyle? George Bush invaded a country that hadn't attacked us because a supernatural voice told him to. Rubber stamping the symptoms of these illnesses has consequence.

Do we want to continue slipping into third world status? What century will modernism begin in this country? Why doesn't the media ever face this elephant in the national living room? Cowards.

Posted by: B2O2 | March 11, 2010 6:59 PM | Report abuse

Protestants, catholics, pentecostals, evangelicals ... whatever. They are differences of degree, not of kind. That such erstwhile intelligent people can believe this crap at all says much for the power of early infection ... teach your kids to be afraid of santa god before they grow old enough to think for themselves.

Posted by: barferio | March 11, 2010 7:17 PM | Report abuse

Shut up Gerson.

Posted by: Potter2 | March 11, 2010 7:39 PM | Report abuse

The real issue here is the collapse of mainstream protestantism in the US over the last centuries, and the cultural marginalization and anti-intellectualism of what replaced it (conservative protestantism in its various flavors). This is why when a conservative protestant President (Bush) needs judicial ammunition, he will invariably have to pick conservative Roman Catholics.

Posted by: carlo4 | March 11, 2010 7:46 PM | Report abuse

Of course I meant decades, not centuries...

Posted by: carlo4 | March 11, 2010 7:47 PM | Report abuse

So law is a totally rational exercise - like the law of physics or the law of nature. A healthy predator prefers the weak in a herd since they are easier to bag, for example. Religion or theosophy has no place in law according to some here. I would submit that this approach defined the 20th century in Europe. I favor Kant over Hegel as a result of studying the 20th century and observing the the intrinsic versus evolving models of ethical determination. The understanding of ethics has little to do with reason, and more to do with the ethical desires of the will - personal or communal. Therefore, teleology has everything to do with its administration: in other words your belief system, whether it is materialist (atheist), or spiritual (extra material) determines your stance. For example - people have intrinsic rights, or the state grants rights.

Posted by: baggerts | March 11, 2010 8:03 PM | Report abuse

I would suggest that it is time for an non-believer to be appointed to the supreme court of the United States. And the sooner the better.

Posted by: hfaulk01 | March 11, 2010 8:04 PM | Report abuse

How about a pagan, or an atheist, or a buddhist? Haven't we had enough with the all-abrahamic court?

Posted by: greeenmtns | March 11, 2010 8:12 PM | Report abuse

Clearly religion was not a factor in choosing the previous justices and by injecting this yet another division into the debate people like Gershon keep diluting the character of the American fabric.

Gershon (by no extension an intellectual), paints all protestants a wide flippant and derogatory brush. And people wonder where the tea party movement came from, and why idiots like Limbaugh and Beck are even listened to. Now we know..

Posted by: RandomGuy | March 11, 2010 8:16 PM | Report abuse


Don't you really mean a Southern Baptist?

Posted by: helloisanyoneoutthere | March 11, 2010 8:28 PM | Report abuse

edallan ~ by your standard there'd never be another Liberal or Democrat on the USSC.

Posted by: muawiyah | March 11, 2010 8:38 PM | Report abuse

terencef100 ~ look, even the Pope counts Episcopaleans as "separated brethren" and recently inducted a bunch of them into the Catholic Church WITHOUT rebaptism, etc, et al, ad nauseum.

I count Episcopaleans as being essentially Roman Catholic in every meaningful respect (just as does the Pope).

Except for the handful of Jews willing to be WASP tokens, you'll find that for most of the last century there's been a very heavy Episcopalean hand on the comings and goings of the court.

Posted by: muawiyah | March 11, 2010 8:44 PM | Report abuse

Funny how so many people who claim neither race nor religion should matter in America then go on to insist that it's time their particular race or religious views should be represented.

Posted by: cpwdc | March 11, 2010 8:49 PM | Report abuse

thadude33 ~ used to be the Spaniards were given credit for exterminating TENS OF MILLIONS (not just thousands) of native Americans.

So, what happened?

They didn't do that or something? Or they weren't Hispanic enough (since they didn't come from Puerto Rico or Mexico?)

My own pagan and Protestant ancestors arrived in what is now the United States at a very early time. They cut trees for a living, and by all reports got along very well with the Indians.

Actually, they got along so well that the Indians now living around the Northern shores of Chesapeake Bay have the very same genetic anomalies that mark my own ancestors ~ can't get tighter than that buddy!

To be honest, DISEASE, most likely of American origin, swept through the Americas in great plagues and killed tens of millions of people BEFORE there were more than a few thousand Spaniards, or even 100 Protestants in the New World.

So cut the Bull Cr*p about Protestants killing all the Indians. They didn't. And neither did the Spanish Catholics!

Posted by: muawiyah | March 11, 2010 8:50 PM | Report abuse

Maybe all justices should be atheists and agnostics so as to assure no favoritism toward this or that religion.

Posted by: stuck_in_Lodi | March 11, 2010 9:02 PM | Report abuse

O god let it be an atheist.

then i could believe in impartiality on the Court.

Posted by: forestbloggod | March 11, 2010 9:20 PM | Report abuse

Every time I hear O'Connor's name mentioned I get ill. When you are called to serve your country that takes precedence over family. So now we have that crybaby Roberts and pukes like Alito instead. What a sad situation.

Posted by: jtmontclair | March 11, 2010 9:27 PM | Report abuse

Protestant, Buddhist, existentialist, just so long as another Catholic isn't nominated. They already have a healthy majority, that clearly doesn't represent the majority of Americans, and we're getting to the point where it looks like the Pope is in charge of America.
And seriously, Fthenazipope.

Posted by: jeffc6578 | March 11, 2010 9:31 PM | Report abuse

Good point, Mr. Gerson. It's amusing to see how your logic has so offended the liberals.

Posted by: hill_marty | March 11, 2010 10:12 PM | Report abuse

This post is should be incorporated into High School English textbooks as an example of how to deploy 531 words and say absolutely nothing.

Posted by: douglaslbarber | March 11, 2010 10:14 PM | Report abuse

I suggest thaat Mr. Gerson should take a page out of Glenn Beck's playbook when Mr. Beck told his viewers this week, "I have wasted an hour of your time."

Posted by: jdcolv | March 11, 2010 10:26 PM | Report abuse

Mr. Gerson, I'm quite disappointed in your attempt at humor by painting all American Protestants as WASPs. In fact, in this nation, you will find millions of people of every race, ethnicity, and social class who are practicing Protestants. Your error of omission is quite telling. How can you write of race and religion without acknowledging the existence of African American Protestant churches that fostered and advanced the Civil Rights movement of the past century? Furthermore, it is quite intellectually disingenuous of you to equate the struggles of growing up poor and Latina to the privilege of your hypothetical WASP New England man. Stop and think about the analogy you're making before you decide embark upon satire.

Posted by: DCviaCA | March 11, 2010 10:38 PM | Report abuse

I don't know about Protestant, but I do think we have our quota of white men.

Posted by: MNUSA | March 11, 2010 10:44 PM | Report abuse

As a woman, I don't know about Protestant, but I do think we have exceeded our quota of men.

Posted by: MNUSA | March 11, 2010 10:45 PM | Report abuse

Frankly, I'm a bit sick and tired of this quota mentality. And I thank Gerson for the column.

As far as I'm concerned, even another Catholic would be acceptable, assuming s/he was not an ultra right wing fascist like the current gang and/or a Vatican shill.

Posted by: FarnazMansouri | March 11, 2010 11:03 PM | Report abuse

How funny is it to see all the Southern Baptist conservatives defending the Catholics in the face of (gasp) protestants?

Posted by: jeffc6578 | March 11, 2010 11:05 PM | Report abuse

MNUSA ~ we are woefully short of Skolt Sa'ami too.

Posted by: muawiyah | March 11, 2010 11:21 PM | Report abuse

I presume this has been already argued to death, but I'd like to point out that there are a significant number of Protestants (like myself) who have never even been to the Vineyard. Our ancenstors made their way to America from places like Scotland and Middle Europe, settled along the Atlantic seabord, then moved west.

Posted by: jaltman1 | March 12, 2010 12:55 PM | Report abuse

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