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Why religion should get less attention during the Supreme Court nomination process

President Donald Trump shakes hands with Judge Brett Kavanaugh his Supreme Court nominee, in the East Room of the White House, Monday, July 9, 2018, in Washington.
President Donald Trump shakes hands with Judge Brett Kavanaugh his Supreme Court nominee, in the East Room of the White House, Monday, July 9, 2018, in Washington.
Evan Vucci, Associated Press

SALT LAKE CITY — Finalists' faith was much discussed as President Donald Trump prepared to announce his second nominee to the Supreme Court. But religious beliefs deserve less attention than some other personal or professional affiliations during the confirmation process, according to legal scholars.

Like adherence to religious beliefs, participation in a law society shapes how someone approaches hot-button social issues and legal conflict. Membership in The Federalist Society or The American Constitution Society may say more about how a potential justice will rule than whether he or she is Catholic or Jewish.

"There's a defined pipeline of potential justices," said Frank Colucci, an associate professor of political science at Purdue University Northwest. "It is more likely (today) that … you know what you're going to get."

In other words, receiving a stamp of approval from The Federalist Society — all four of Trump's finalists did — says something about a judge's record and interests. It's safe to conclude that he or she is conservative and cares more about the original meaning of the Constitution than modern interpretations.

"It is emphatically the province and duty of the judiciary to say what the law is, not what it should be," explains The Federalist Society's website.

Knowing a candidate's religion doesn't allow for the same easy conclusions. Justice Sonia Sotomayor, a liberal justice known for fiery dissents, is Catholic, as are four of her conservative colleagues. Retiring Justice Anthony Kennedy is Catholic, too, and he joined with liberals on rulings upholding abortion rights and legalizing same-sex marriage.

Many American Catholics likely supported Kennedy's positions. Only 40 percent of politically conservative Catholics and 25 percent of politically liberal Catholics look to their religion most "for guidance on right and wrong," according to Pew Research Center.

But finalists' faith was still a major talking point over the last week, especially when it came to Appellate Judge Amy Coney Barrett, who currently serves on the 7th U.S. Circuit Court of Appeals.

Barrett's religious beliefs troubled some Democrats while she was being confirmed to the 7th Circuit last year.

"The conclusion one draws is that the dogma lives loudly within you. And that's of concern when you come to big issues that large numbers of people have fought for years in this country," Sen. Dianne Feinstein, D-Calif., famously said during hearings last year, according to The Washington Post.

Barrett is Catholic, and she belongs to People of Praise, a Christian charismatic group that offers spiritual guidance and social support to members. Barrett's detractors worried the group would have an outsize influence on her rulings and say many members believe women should be subservient to men, the Post reported.

Trump's nominee, Judge Brett Kavanaugh of the D.C. Circuit, and another finalist, Judge Thomas Hardiman of the 3rd Circuit, are also Catholic. Raymond Kethledge of the 6th Circuit is an evangelical Christian, according to a Religion News Service analysis.

"I am part of the vibrant Catholic community in the D.C. area. The members of that community disagree about many things but we are united by a commitment to serve," Kavanaugh said during his remarks Monday night in accepting the nomination.

He also mentioned being taught at his Jesuit Catholic high school to care for others and his ongoing volunteer work.

Deep personal faith might make a judge more sympathetic to religious freedom claims, but so does an approach to the law like that encouraged by The Federalist Society.

For example, in Burwell v. Hobby Lobby in 2014, conservative justices joined together in a 5-4 ruling that found closely held, for-profit corporations are protected by the Religious Freedom Restoration Act and should not be forced to provide contraception coverage for employees if owners object to birth control for religious reasons.

The Federalist Society does not take legal or policy positions, and members regularly debate the proper approach to health care policy, taxes and other issues, wrote Jonathan Adler, a society member and law professor at Case Western University, for The Washington Post last year.

"Some Federalist Society members were at the forefront of developing challenges to the Affordable Care Act, while others were convinced of its constitutionality. Some Federalist Society members inveighed against the unconstitutionality of President Barack Obama's immigration reforms, while others of us defended their legality," he wrote, while also acknowledging that it's fair to describe it as a "right-of-center" organization.

But the judges who made it onto the president's list of finalists were all carefully vetted, and this diversity of opinion likely disappeared as Trump worked to ensure that the nominee would uphold his policies on controversial issues like abortion. Some finalists faced criticism for not being conservative enough on the Affordable Care Act and other issues.

The Trump administration hopes to avoid unexpected future rulings from their Supreme Court picks. Other Republican presidents haven't been so lucky. Ronald Reagan likely didn't expect Kennedy to rule in favor of abortion rights or expand legal protections for members of the LGBT community, Colucci said.

Thanks to organizations like The Federalist Society, it's easier to predict the future, he added.

"People who have been vetting or grooming justices for federal court openings have a much more developed process now than in 1987," when Kennedy was nominated, he said.