Jewish Groups Backing Away From Talk of Opposing Court Pick

By Ori Nir

Published July 15, 2005, issue of July 15, 2005.
  • Print
  • Share Share

WASHINGTON — As rumors escalate of additional Supreme Court retirements, officials at Jewish organizations say they think it is increasingly unlikely that they will directly oppose or endorse any of the President Bush’s nominees.

Bush is expected soon to nominate a successor to retiring Justice Sandra Day O’Connor. In recent days, Washington has been abuzz with speculation that ailing Chief Justice William Rehnquist, 80, and Justice John Paul Stevens, 85, will soon retire, as well — leading some Jewish organizations to conclude that they must pick their battles carefully.

Some of the more liberal Jewish organizations are gearing up for a possible fight to oppose nominees whom they might find particularly objectionable. But even leaders of these groups say it is unlikely that they will mobilize an all-out grass-roots campaign to oppose a Bush nominee.

In all likelihood, officials at Jewish organizations say, their involvement will be limited to sending letters to the Senate, underscoring concerns about specific views or past rulings of nominees.

“A nominee will have to be outside the judicial mainstream for us to oppose him or her,” said Marc Pelavin, associate director of the Washington-based Religious Action Center of Reform Judaism. The center has been more outspoken than most other Jewish groups in opposing some of Bush’s nominees to the federal bench. Pelavin said that the RAC, which has opposed four of Bush’s appellate court nominees, considers Supreme Court Justice Antonin Scalia — the conservative judge that President Bush indicated is a presumptive mold for future nominees — as being well within the judicial mainstream.

Pelavin said that Scalia, who opposes abortion rights and is far to the right of Jewish organizations on most church-state issues, “fits that category of someone who is really not that extreme.”

The National Council of Jewish Women has consistently spoken out against lower-court nominees who oppose a woman’s right to choose, characterizing abortion as a “defining issue.” But the organization’s president, Phyllis Snyder, told the Forward that abortion would not be a litmus test for the organization and that the NCJW would also consider other concerns regarding constitutional rights.

Since Bush took office in 2001, the women’s council has opposed 21 of his judicial nominees. Only a handful of the other Jewish groups took a position on any of the president’s 230 nominees for the federal bench. When they did, however, it was almost always on one key issue: church-state separation. Officials at several major national Jewish organizations said it was the only issue this time around that could possibly galvanize many Jewish groups to oppose a Bush nominee.

At the very least, it is likely to be the number-one issue about which Jewish groups urge the Senate to grill nominees.

“There are [conservative] organizations and people in Congress now who are seriously talking about taking legal measures to preserve America’s Christian heritage,” said Marc Stern, general counsel of the American Jewish Congress. “Clearly anything of that kind would be a trip-wire for everybody in the American Jewish community,”

Most groups would oppose someone who is committed to overturning the Supreme Court ruling that bans prayer in public schools, Stern said. However, it is unlikely that Bush will appoint a nominee who holds such an extreme view.

Evaluating a nominee’s views on church-state issues can pose tricky questions. Take Alberto Gonzales, the recently appointed attorney general and friend of Bush.

Some conservative groups dominated by Christian activists are already opposing Gonzales as a possible choice for the Supreme Court, arguing that he’s too moderate on abortion. And on most issues, Jewish groups would prefer Gonzales to many other presumed candidates mentioned in the press. But Jewish organizations would have grave reservations about his positions on the role of religion in the public square.

Gonzales was White House counsel when the Bush administration in 2003 joined the Salvation Army in opposing a lawsuit by more than a dozen of its New York employees, challenging the organization’s new practice of discrimination on the basis of religion. The workers challenged attempts by the Salvation Army to require employees to divulge information about their faiths, including the churches they attended. Gonzales, as White House counsel, also vigorously defended Bush’s controversial faith-based initiative.

“I am sure that if he were the nominee, we would have questions to ask about those cases,” said a senior official with a national Jewish agency. But would these cases be enough to all-out oppose Gonzales? “Probably not,” another Jewish official said on condition of anonymity. Gonzales would pass the Scalia test easily, the official explained.

Church-state questions become even trickier with presumed candidate Michael McConnell, a Bush appointee to U.S. Court of Appeals for the Tenth Circuit who was confirmed in 2002, with the support of many conservatives and some leading liberal law professors. “McConnell is a mixed bag” on religion and state, the AJCongress’s Stern said. McConnell, a 50-year-old former law professor, has urged a constitutional amendment that would permit religiously affiliated agencies to participate in tax-supported benefit programs, and has written that religious activities should be given “equal access to public benefit.” At the same time, he has made clear that he supports the funding of religious activities only if such programs give no advantage to religion in general, or to any specific religion. He is also opposed to prayer in public school classrooms and holds stringent positions defending the free exercise of religion.

Nathan Diament, director of the Orthodox Union’s Washington-based Institute for Public Affairs, said that McConnell could be a reasonable compromise candidate for the Jewish community as far as church-state issues are concerned. Some officials with liberal Jewish groups cautiously agreed, but said that liberal Jewish groups would be hard pressed not to oppose him — because of his staunch opposition to abortion rights.

McConnell is one of the nation’s leading advocates for reversing the Supreme Court’s 1973 landmark Roe v. Wade ruling, which legalized abortion. He once called the legal reasoning behind it an “embarrassment.”

Find us on Facebook!
  • "My wife and I are both half-Jewish. Both of us very much felt and feel American first and Jewish second. We are currently debating whether we should send our daughter to a Jewish pre-K and kindergarten program or to a public one. Pros? Give her a Jewish community and identity that she could build on throughout her life. Cons? Costs a lot of money; She will enter school with the idea that being Jewish makes her different somehow instead of something that you do after or in addition to regular school. Maybe a Shabbat sing-along would be enough?"
  • Undeterred by the conflict, 24 Jews participated in the first ever Jewish National Fund— JDate singles trip to Israel. Translation: Jews age 30 to 45 travelled to Israel to get it on in the sun, with a side of hummus.
  • "It pains and shocks me to say this, but here goes: My father was right all along. He always told me, as I spouted liberal talking points at the Shabbos table and challenged his hawkish views on Israel and the Palestinians to his unending chagrin, that I would one day change my tune." Have you had a similar experience?
  • "'What’s this, mommy?' she asked, while pulling at the purple sleeve to unwrap this mysterious little gift mom keeps hidden in the inside pocket of her bag. Oh boy, how do I answer?"
  • "I fear that we are witnessing the end of politics in the Israeli-Palestinian conflict. I see no possibility for resolution right now. I look into the future and see only a void." What do you think?
  • Not a gazillionaire? Take the "poor door."
  • "We will do what we must to protect our people. We have that right. We are not less deserving of life and quiet than anyone else. No more apologies."
  • "Woody Allen should have quit while he was ahead." Ezra Glinter's review of "Magic in the Moonlight":
  • Jon Stewart responds to his critics: “Look, obviously there are many strong opinions on this. But just merely mentioning Israel or questioning in any way the effectiveness or humanity of Israel’s policies is not the same thing as being pro-Hamas.”
  • "My bat mitzvah party took place in our living room. There were only a few Jewish kids there, and only one from my Sunday school class. She sat in the corner, wearing the right clothes, asking her mom when they could go." The latest in our Promised Lands series — what state should we visit next?
  • Former Israeli National Security Advisor Yaakov Amidror: “A cease-fire will mean that anytime Hamas wants to fight it can. Occupation of Gaza will bring longer-term quiet, but the price will be very high.” What do you think?
  • Should couples sign a pre-pregnancy contract, outlining how caring for the infant will be equally divided between the two parties involved? Just think of it as a ketubah for expectant parents:
  • Many #Israelis can't make it to bomb shelters in time. One of them is Amos Oz.
  • According to Israeli professor Mordechai Kedar, “the only thing that can deter terrorists, like those who kidnapped the children and killed them, is the knowledge that their sister or their mother will be raped."
  • Why does ultra-Orthodox group Agudath Israel of America receive its largest donation from the majority owners of Walmart? Find out here:
  • from-cache

Would you like to receive updates about new stories?

We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.