Will Saletan has a fascinating piece up at Slate right now about the extent to which the borking of Robert Bork at his Senate confirmation hearings involved questions about his religious beliefs. I had completely missed that part of the confirmation battle (in fairness, I was in ninth grade and seem to remember that I spent part of the summer at church puppetry camp because, yes, I am that much of a geek).
It’s appalling to go back and see how Bork was compelled to address charges that he was an agnostic in statements like the following before the Senate Judiciary Committee:
I don’t want to go into my religious beliefs, but the report in a national magazine that I was an agnostic arose from the following conversation, and the reporter agrees that it rose from the following conversation. He said, ”You’re not terribly religious, are you?” And I said, ”Not in the sense you mean.” That’s it. … And I later denied that I was an agnostic, in The New York Times, when I got a chance to. I took him to be talking about regular—you know, great piety and regular church attendance, and that’s what I meant. … But agnostic does not come out of that conversation in any way and I am not an agnostic, but that’s as much as I think I should say about it.
Such an inquiry into a nominee’s religious behavior and beliefs seems unthinkable now. But Saletan’s point is that the same argument being made by those who demand Elena Kagan publicly reveal her dating history and sexual orientation–that this aspect of her personal life could affect how she approaches cases regarding homosexuality–was used to justify the religious inquisition of Bork.
You could also make the point that it’s an especially treacherous slippery slope. If it’s essential to know a judicial nominee’s religious beliefs or sexuality because that sort of personal experience can’t help but inform their judicial rulings, why not other aspects of their past? Why not ask female nominees whether they’ve ever had an abortion and male nominees whether they’ve ever had a partner who aborted? That kind of personal experience would seem to be relevant when deciding an abortion case wouldn’t it?
The truth is that biography doesn’t tell you much about how a judicial nominee will rule, just as it often doesn’t tell you a heck of a lot about how a president will vote. Yet it’s trotted out time and again in our politics–both in electoral campaigns and now twice in the past year by Obama, who has argued that the biographies of his Supreme Court nominees should tell us they’re the sort of women who understand ordinary Americans. Maybe that’s to be expected from a man whose own personal biography has been both helpful and treacherous for his political fortunes. Biography can sometimes fill in the gaps left by a career conducted with exquisite ambiguity. But it can also chip away at personal privacy without revealing much for the trouble.