SCALIA'S ANTI-CATHOLICISM?

Is Scalia "anti-catholic"? In a speech at Georgetown last year that I attended, Justice Scalia said that if he thought that it was against his Catholic beliefs to support the death penalty, then the only honorable course would be to resign from the bench. This statement elicited a round of criticism of Scalia's understanding of Catholicism. This is predictable given the contentiousness of the issue and the mutually incompatible stances that self-professed Catholics take on the question of capital punishment.

Again, Scalia's position is that all catholics who believe that the death penalty is incompatible with their faith -- as they understand it -- shouldn't be on the bench. I realize that there is a difference between saying that a certain belief should cause someone to resign from the bench and saying that a certain belief could be a valid criteria for judicial selection, but I'm not sure that the difference is all that significant.

What Scalia was saying was that certain catholics should not remain on the bench. He raises profound questions of judicial obligation here, and I have to admit that I don't know precisely what I think about this issue, but all I want to establish is that it is facile to accuse him of being "anti-catholic." Actually, "facile" is a kind way of putting it.

The most recent tactic in the battle to put Bush's nominees on the bench is to accuse those who oppose Pryor of being anti-catholic because they have raised questions about his anti-abortion stance. Listen, for example, to Nina Totenberg's NPR report on yesterday's Judiciary Committee meeting here. This way of framing the issue is weird to me: it's not just catholics who oppose abortion, and not all catholics oppose abortion. It's more appropriate and accurate to note that the Democrats oppose Pryor because a) his stances on controversial positions are not in accord with their own, and b) his views seem so deeply held that Democrats wonder whether or not he will judge "impartially." This second reason can be redescribed as the fear that Pryor will use his discretion (which everyone has to admit exists in appellate cases) against certain types of defendants or against certain kinds of claims. Both a) and b) are legitimate reasons for Senators to oppose nominees, and neither is a threat to the "rule of law" (pace the folks at Southern Appeal; for a contrary view, see Matthew Yglesias's post here). There is, at the very least, no textual reason to accuse Senators of employing a dangerous understanding of "advice and consent" in the Pryor case.

For more on the anti-catholic line, check out the (protestant-funded) ACLJ and listen to their radio spots, here. They've been beating this drum for a long time. One particularly ingenious way that they raise this issue is to select a lot of calls from people who argue that the Senate is establishing a "religious test" for federal judicial nominees, and "asking" whether or not this test doesn't infringe on religious freedom. Pretty smart: makes it look like there is a swell of grass roots revulsion at Senate Democrats here.

MORE: See my post above.

MORE: I respond to the Curmudgeonly Clerk's incisive criticisms in my own post above, here.