First Blow in the Battle over Justices?

Back in January, Supreme Court Justice Antonin Scalia made some extraordinary statements at a Pew Forum on "Religion, Politics, and the Death Penalty." Seemingly in approval, the religious-conservative magazine First Things published an abridged version of his remarks in its May issue.

Still, in other media, these remarks went without criticism for months. Only after a WSWS editorial did any substantial comment come in the US press, this time in a NY Times op-ed from Princeton history professor Sean Wilentz. Suggesting that "Mr. Scalia's true priority is to get secular humanists off the federal bench," Wilentz writes,

In Chicago Mr. Scalia asserted, not for the first time, that he is a strict constructionist, taking the Constitution as it is, not as he might want it to be. Yet he wants to give it a religious sense that is directly counter to the abundantly expressed wishes of the men who wrote the Constitution. That is not properly called strict constructionism; it is opportunism, and it threatens democracy. His defense of his private prejudices, even if they may occasionally overlap the opinions of others, should not be mislabeled conservatism. Justice Scalia seeks to abandon the intent of the Constitution's framers and impose views about government and divinity that no previous justice, no matter how conservative, has ever embraced.

So what does this mean? Beyond the relevance of the recent ruling on the death penalty, Scalia's comments pave the way for more openly partisan and public remarks on the religious beliefs of judges and potential judges.

After all, following the vouchers ruling and the pledge of allegiance flap, conservatives have basically vowed to make belief in god a pre-requisite for appointment. Rhetoric like Scalia's might signal a shift in how justices are weeded out or groomed for top positions. Religion is likely to become the new litmus test for determining which judges - or, just as importantly, types of justices - will garner support before confirmation hearings are even contemplated.