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As the election season moves into high gear, it’s worth reflecting for a moment on what’s been won and lost in the increasingly rancorous judicial confirmation battles of the past four years. Democrats in the U.S. Senate have stalled a handful of appointments and scuttled others. Republicans have seen a significant number of conservative jurists granted lifetime appointments. Filibusters have been deployed, and recess appointments detonated. Everybody tried to make this a front-page issue. But for the most part, the American public has been unconcerned. The composition of the federal judiciary is still not a voting issue. Even as voters understand that the current Supreme Court actually chose the current president, few get worked up over the possibility that the next president may pick three members of the Court. It’s all just a bit too attenuated to matter, for one thing. For another, a Supreme Court that includes seven justices nominated by Republicans has been acting more and more like a bunch of liberal sissies each year. Clearly, for most voters, who’s on the federal bench is less important than the war or the economy. That’s why the Republicans are ramping up their rhetoric in the judge wars. Their new confirmation issue will be guaranteed to get out the vote because the claim is that Congress now detests Christians. LOSING THE BATTLE OVER NAMES First, it’s useful to recall a battle that’s already been fought and lost, while Democrats were asleep at the switch. It’s a battle over political nomenclature only, but the damage to the national conversation about the judiciary is already done. Because long before any of us knew how it happened, the words “liberal activist judge” had become ubiquitous. And the practice of blaming all our social ills on judges — judges who “make law” as opposed to interpreting it — has become so mainstream that it’s now virtually a given. Abortion, affirmative action, gay marriage: Each has been dropped at the doorstep of a handful of liberal judges, who — as the story goes — have taken it upon themselves to act as a meta-legislature, thwarting the will of the people and their representatives. That it’s patently untrue — judges of every political stripe behave as “activists,” to the extent that that word means inventing new law to achieve desired political outcomes — seems to resonate with precious few. What’s more, by those terms, the most “activist” court of all is the meddlesome, pushy, federalism-loving, criminal-rights-hating Rehnquist Court. Of course, the justices are only decried as activist when they promote gay rights or affirmative action. When they are striking down federal laws — something they do rather frequently — they are considered models of judicial restraint. It’s too late for clarification on the hypocrisy underlying the “activist judges” myth. President George W. Bush himself has found a winning issue in berating liberal activists on the bench, and Congress is gleefully considering new legislation to tie their hands. Long before anyone was able to explain the rhetorical trick, the game was lost. Which is why it’s crucial that Democrats in Congress recognize that they may be sleeping through yet another battle over the language of judicial confirmation. And this one is a war they cannot afford to lose. The new party line from the right, simmering just below the surface of the news, is that Democrats in the Senate simply hate Christians. As President Bush has appointed judge after judge who has pledged to reinstate Christian values in this country, the cry has come up from these nominees’ supporters that Senate Democrats who oppose them are anti-religious. The shriller but increasingly resonant cry: Senate Democrats are impeding religious judges’ fundamental right to the free exercise of their religion. JUDICIAL ZEALOTS We’ve come a long way, baby. There ought to be a new term for judges who pledge to undermine existing legal regimes that offend their religious views. “Judicial activism” is a theory of constitutional interpretation, rooted in the notion of the Constitution as a living document. Judicial activists still interpret the law; they just use a different yardstick. Which is why we should invent a very different name for a judge wholly uninterested in interpreting the Constitution at all. Judges who come to the bench with the express intention of chipping away at Roe v. Wade — as did William Pryor Jr., who scored a recess appointment to the U.S. Court of Appeals for the 11th Circuit this year, despite his claim that Roe was “the worst abomination of constitutional law in our history” — are more than just “activists.” They are judicial zealots, crusading against the settled law of the land. Yet now they seek cover under the right to exercise their religious views. When a group of judges is elevated to the bench, expressly claiming to be pro-life or against affirmative action, and when those judges use their high office to deny abortion waivers to pregnant teens, for example, or to otherwise erode existing rights, one is no longer simply dealing with theoretical questions about constitutional interpretation. “Activist” or “originalist” labels no longer apply. One is now talking about judges who refuse to be bound by the law of the land. One is talking about judges unmoored from any interpretive tool, beyond their own morality. Yet increasingly, many of these judges are gaining lifetime appointments. And doing so by claiming a right to religious freedom that includes the newfound right to superimpose their religion over settled case law. During this spring’s very bitter confirmation battle over J. Leon Holmes, a Bush appointee to the U.S. District Court for the Eastern District of Arkansas, several senators — including a clutch of female Republicans — found themselves alarmed over an article Holmes had co-written with his wife in 1997 for a Roman Catholic publication. They wrote, among other things, that a woman “is to place herself under the authority of the man.” Holmes has also compared legalized abortion to the Holocaust, observing that “the abortion issue is the simplest issue this country has faced since slavery was made unconstitutional. And it deserves the same response.” Many senators shared the view of Sen. Edward Kennedy (D-Mass.) that all this suggested a less than fervent passion for equal rights or the constitutionally protected right to choose. To be sure, private citizens can agitate, march, write, and lobby for whatever causes they like. But they cannot announce that those views are somehow shielded from scrutiny because they are religious in nature. Holmes’ supporters thus took several tacks in his defense. The really sophisticated among them called Kennedy a bad Catholic for persecuting a man who was merely interpreting Ephesians. The more cunning suggested that Holmes was somehow being “persecuted” by the Senate for his Christian beliefs. Sen. Rick Santorum (R-Pa.) called the Holmes confirmation a “test on religious liberty and religious freedom.” Said Kay Daly, of the Coalition for a Fair Judiciary: “One group in this country that still seems to literally suffer the slings and arrows of discrimination, with the approval of places like the United States Senate, is Christians.” AVOIDING RELIGIOUS TYRANNY Let us be perfectly clear: No one is opposed to Christian judges, any more so than Jewish or Mormon judges. The bench is a richer place because of spiritual diversity. But the fear about judges of any religion is that they might not be able to place the law of the land above the law of their church. And that concern is wholly legitimate. It may not strike individual judges as reasonable. But it is our only protection against religious tyranny from the bench. Even Justice Antonin Scalia — a devoted Catholic — has suggested (only half-facetiously) that Catholic judges who disagree with the Catholic Church’s position on the death penalty should simply step down. The point is not that religious judges should be forced to be religious at home and secular at work. The point is that judges swear an oath to uphold the Constitution, not the Bible or the Torah or the Koran. And anyone who feels religiously “persecuted” for being held to that simple standard has no business being a judge. Sen. Jeff Sessions (R-Ala.) was outraged at the Holmes hearings by this notion: “Are we going to demand that [nominees] come before the Senate Judiciary Committee and renounce their faith before they become a federal judge?” he asked. Sessions has it exactly wrong. No judge is asked to renounce his or her faith before assuming the bench, any more than the president is asked to renounce his faith before assuming office. In both cases, however, the scope of that office must be bound by secular, not religious, law. And any judge who pledges, as did Pryor, “to preserve the American experiment by restoring its Christian perspective,” must be reminded that courts are not the place to impose sectarian religious values. The simple religious metric for public officeholders should be that their private “religious freedom” ends where it makes the citizens they serve less free. That is not persecution. That is democracy. The rhetorical slippage on this issue is profoundly dangerous. It needs to be clarified now. Dahlia Lithwick is a senior editor and Supreme Court correspondent for Slate. She is co-author of Me v. Everybody (Workman Publishing). This article originally appeared in the September issue of The American Lawyer .

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