Supreme Court prospects trigger church-state separation anxieties

In what could be his last official act as chief justice, William Rehnquist intends to swear in President Bush on Jan. 20 for a second term. The 80-year-old jurist, who is suffering from thyroid cancer, is likely to announce his retirement shortly after the inauguration.

The news came as Jews were lighting candles to celebrate Chanukah and the struggle for religious freedom. The Supreme Court is a vital keeper of that flame in America, so it was particularly disturbing to hear some ominous words from the man many consider most likely to succeed Rehnquist.

Associate Justice Antonin Scalia told an audience at a historic New York synagogue that the founding fathers did not intend to erect a wall of separation between church and state, and that it was such a separation in Germany that helped make the Holocaust possible.

"Did it turn out that, by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America?" he asked rhetorically. "I don't think so."

Disturbing — and inaccurate — words from someone we expect to protect and defend that freedom for American Jewry, and indeed all Americans.

The separation of church and state, along with the concept of democratic pluralism, have made the United States unique in history and made it possible for American Jewry to be the most secure, prosperous and successful diaspora community ever.

Protection of that principle of separation, embodied in the first 10 words of the Bill of Rights, has consistently been a high priority for the Jewish community.

Despite what Scalia said, Europe is not "God-neutral," and not all states are secular. For example, Elizabeth II is head of state and the head of the Church of England.

Nor was Nazi Germany religion-neutral, as Scalia suggested. Hitler invoked the name of God when he merged church and state in a 1933 decree uniting all Protestant denominations into a church-state under a Reich bishop.

Scalia discussed his views on separation last month at Manhattan's historic Shearith Israel synagogue at a conference marking the 350th anniversary of Jewish life in America and the Orthodox congregation itself; the late Justice Benjamin Cardozo used to worship there.

Scalia's views on separation are not the only ones disturbing to most Jews. A Catholic and father of nine, including a priest, he is a staunch foe of abortion and proponent of taxpayer funding for parochial schools.

Other issues of concern include his views on gay rights, privacy protection, hate crimes, partisan activities by tax-exempt organizations and prayer in public schools.

White House aides have been quoted as saying Bush intends to nominate "strong ideological conservative" judges, as he did in his first term. Bush has called Scalia, the court's most conservative voice, his role model for future appointments.

Scalia was named to the court by President Reagan in 1986 to fill the seat of Rehnquist, who was elevated to chief justice. At 68, he is the second-youngest sitting justice (Clarence Thomas, 56, his ideological clone, is the youngest).

As if Scalia's restrictive views of the First Amendment were not bad enough, Republican leaders are moving to limit Senate debate on all Bush judicial nominations.

In addition to Rehnquist, two or three other justices are likely to retire during the next four years. Court appointees are a president's lasting legacy and can outlast his term by decades; Rehnquist was first nominated in 1971 by Richard Nixon.

Senate Majority Leader Bill Frist (R-Tenn.) wants to neutralize possible Democratic opposition by changing Senate rules and invoking the "nuclear option." That would allow cutting off any Democratic filibuster with only a simple majority of 51 votes instead of the 60 now needed required to end debate.

Bush has done better than the past three first-term presidents in getting Senate approval for his judicial nominations, but that's not good enough for Frist, who will have 55 Republicans in the 109th Senate. "One way or another, the filibuster of judicial nominees must end," he said.

Filibuster or unlimited debate, though widely associated with the long-winded efforts of Southern conservatives like the late Sen. Strom Thurmond to block civil rights legislation, is used by both parties. Democrats used it to block 10 Bush court nominees in his first term.

Incoming Democratic leader Sen. Harry Reid (Nev.) has threatened to "strike back" and "screw things up" if the majority oversteps.

If that happens, look for Republicans to tag the Democrats "obstructionists," a charge that was damaging in recent elections. Helping the GOP will be the newly energized religious right, which feels it was instrumental in electing the president and many other Republicans last month, and it intends to collect on its investment.

The evangelicals, who count the president as one of their own, consider the courts and the wall of separation major roadblocks to enacting their agenda.

Some Jewish groups, particularly Orthodox, have gone along with them, embracing vouchers, public funding of parochial schools, funneling tax dollars for social services through religious institutions, school prayer, erecting a national menorah to match the Christmas tree and other measures that erode that wall of church-state separation that has served American Jewry so well.

Much of the Jewish reluctance to challenge Bush's court nominations is the old get along, go-along Washington game. Some say they're afraid opposition could have repercussions on policy toward Israel or on their groups' tax status as non-political charitable institutions.

But many Jewish machers worry they'll lose high visibility access to top administration officials, which is important to their institutional egos and fund-raising — even if they have to sacrifice principles and influence to get it.

The coming changes on the federal bench and their far-reaching impact on policies so vital to the Jewish community mean it is time for Jewish leaders to stop shaking their heads on the sidelines and go out and fight for what they say they believe in.




Douglas M. Bloomfield is a Washington, D.C.-based political consultant who was formerly chief legislative lobbyist for AIPAC.