Once again, the political whirlpool is revolving around the appointment of a new associate justice of the U.S. Supreme Court. The nominee, Elena Kagan, is not Catholic. She is Jewish. If confirmed, she will be the third Jew currently on the court, and the third woman. She will serve with six Catholics, but no Protestant.
Not long ago, religion and gender would have trumped everything, since the conventional wisdom in Washington, D.C., had been that there is a “Jewish seat,” a “Catholic seat,” a “black seat” and “woman’s seat.”
Usually the first from a minority has had a hard time being confirmed. In 1836, President Andrew Jackson realized this when he named Maryland’s Roger Brooke Taney, a Catholic, to be chief justice.
It was not new to Jackson. Earlier, he had selected Taney to be attorney general, and then an associate justice, but these attempts failed. Jackson got Taney as his treasury secretary, then chief justice. Always, the talk about Taney’s Catholicism was brisk and nasty.
Serving until his death in 1864, Taney along the way drew the Dred Scott decision and defied some of President Abraham Lincoln’s Civil War policies.
After Taney, for years, no Catholic was on the high court. By 1894, Catholics were becoming a sizeable minority. This meant votes. They overwhelmingly voted Democratic. So, President Grover Cleveland, a Democrat, named a Catholic associate justice, then-U.S. Sen. Edward Douglas White of Louisiana. In 1910, President William Howard Taft, a Republican, appointed White to be chief justice. White died in office, in 1921.
By this time, people spoke of the “Catholic seat.” Accordingly, not naming a Catholic to replace White would have been unthinkable — and politically risky. So, in 1923, President Calvin Coolidge nominated Pierce M. Butler of Minnesota, who served until 1939.
President Franklin D. Roosevelt, a Democrat who was the darling of Catholic voters, always knew who buttered his bread. To follow Butler, he appointed Catholic Frank Murphy, former mayor of Detroit and former Michigan governor. Murphy served until 1949.
Again, the “Catholic seat” languished for a while as five Protestants were appointed. By 1956, President Dwight D. Eisenhower, the first Republican to break the Democrats’ lock on Catholic votes, selected Judge William J. Brennan, a Catholic from New Jersey. (He concurred in Roe v. Wade .)
President Ronald Reagan 1986 created two “Catholic seats” by nominating Antonin Scalia of Virginia. In 1988, he named a third Catholic, Anthony M. Kennedy of California.
Justice Brennan retired in 1990. It was just two Catholics again, but in 1991, Republican President George H. W. Bush appointed Judge Clarence Thomas of Georgia. So, it was three Catholics.
In 2005, President George W. Bush selected Catholic John Roberts, born in Indiana, as chief justice. The next year, Bush nominated Judge Samuel Alito, from New Jersey. This meant five Catholics.
Finally, in 2009, President Barack Obama, a Democrat, appointed Sonya Sotomayor, the sixth Catholic.
Apparently, for a while now, presidents have not acknowledged “dedicated” Supreme Court seats, once so politically important. Still, groups yearn “to be represented” on the court. (One U.S. senator wailed that too many smart lawyers are on the court. Who represents the, well, “less smart” lawyers?!)
It is interesting because throughout history none of these religious, ethnic or gender connections seems ever to have influenced rulings. Maybe when all these justices have said that they will rule on the law as it is written, they have meant it.
Msgr. Owen F. Campion is OSV’s associate publisher.