Chief Justice William Rehnquist intends to swear in President George W. Bush on Jan. 20 for a second term. The 80-year-old jurist, suffering from thyroid cancer, is likely to announce his retirement shortly thereafter.
The news came as Jews were lighting candles to celebrate Chanukah and remember the struggle for religious freedom the festival commemorates. The Supreme Court is a vital keeper of that flame in America.
So it was disturbing to hear ominous words from the man many consider likely to succeed Rehnquist.
Associate Justice Antonin Scalia last month told an audience at Manhattan’s Shearith Israel synagogue, at a conference marking the 350th anniversary of Jewish life in America, that the nation’s founders did not intend to erect “a wall of separation” between church and state; and that such a separation in Germany 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 all Americans.
Separation of church and state plus the concept of democratic pluralism have made the United States unique and made it possible for American Jewry to be the most secure, prosperous and successful diaspora community ever. Protection of that principle 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, British Queen Elizabeth II is head of state and head of the Church of England.
Nor was Nazi Germany religion neutral. Hitler merged church and state in a 1933 decree uniting all Protestant denominations under a Reich’s bishop.
Scalia also is a staunch foe of abortion and proponent of taxpayer funding for parochial schools. His views on gay rights, privacy protection, hate crimes, partisan activities by tax-exempt organizations and prayer in public schools also worry most of the Jewish community.
White House aides have said President 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 Ronald 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.)
In addition to Rehnquist, two or three other justices are likely to retire during the next four years. Court appointees can outlast a president’s term by decades; Rehnquist was first nominated in 1971 by Richard Nixon.
Moreover, Republican leaders are moving to limit Senate debate on all Bush judicial nominations.
Senate Majority Leader Bill Frist wants to neutralize Democratic opposition by changing Senate rules to allow cutting off any filibuster with a simple majority of 51 votes instead of the 60 now required to end debate. Frist will have 55 Republicans in the 109th Senate.
Helping the GOP will be the newly-energized religious right that feels it was instrumental in electing the president and many other Republicans last month, and that intends to collect on its investment.
The Christian religious conservatives, who count Bush as one of their own, consider the courts and the wall of separation major roadblocks to enacting their agenda.
Some Jewish groups, particularly among the Orthodox, have gone along with them, embracing public funding of parochial schools, funneling tax dollars for social services through religious institutions 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 “to-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 access to top administration officials, which is important to their institutional egos and to fundraising — even if they have to sacrifice principles and influence to get it.
The coming changes on the federal bench and their far-reaching effects on policies vital to the Jewish community mean it is time for Jewish leaders to stop shaking their heads on the sidelines and fight for what they say they believe in.
Douglas M. Bloomfield is a Washington, D.C.-based syndicated columnist and a former chief lobbyist for the American Israel Public Affairs Committee.
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