WASHINGTON -- Chief Justice William H. Rehnquist has been winning applause for his warning, however indirect, against politicians threatening federal judges with impeachment if they disagree with their rulings from the bench. Now you have to wonder if the Chief Justice is equally prepared to warn Justice Antonin Scalia on his foray into the thicket of religion and politics.
Rehnquist's defense of judicial independence was made in the aftermath of a ruling by a federal judge in New York, Harold Baer Jr., that drug evidence seized in a case there was inadmissible because the search was illegal. Senate Majority Leader Bob Dole led a chorus of Republicans who said Baer should be impeached.
And President Clinton's press secretary, Michael D. McCurry, hinted that the president might seek Baer's resignation because he was so distressed by the decision. Shortly thereafter, Baer reversed the decision--leaving the widespread impression, valid or not, that he had caved in to the political pressure.
The Chief Justice did not mention the Baer case specifically, but the context was clear when he chose to describe judicial independence as "one of the crown jewels of our system of government" and pointed out that judges can be removed only for criminal conduct, not because national leaders don't like their opinions.
The same day that Rehnquist spoke, however, Scalia gave a speech to a prayer breakfast in Jackson, Miss., that should have set off as many alarm bells as the attacks on an obscure federal district judge in New York.
According to several accounts, Scalia derided those he called "the worldly wise" for what he pictured as their assaults on those who hold strong religious beliefs, a group with whom he identified himself much to the apparent delight of the 650 listeners at the First Baptist Church.
The conservative justice depicted Christians as under attack from a secular society. "We are fools for Christ's sake," he said. "We must pray for the courage to endure the scorn of the sophisticated world." Scalia, a Roman Catholic himself, affirmed his own belief in miracles but added that "those who adhere to all or most of these traditional Christian beliefs are to be regarded as simple-minded."
There is, of course, no reason Scalia should be prevented from airing his views on religion. He already has established himself through his decisions on the bench as a justice who favors lowering the walls of separation between church and state.
But Scalia is also a sophisticated man who must be aware of the political context in which he spoke at Jackson. One of the most sensitive issues in American politics today is the role of activist Christians in trying to influence election campaigns and legislation before Congress and state and local legislative bodies.
Moreover, much of the energy behind the Religious Right, as it has become known, grows out of a defensive attitude about what its members feel is elitist condescension. Scalia's speech clearly was intended to reinforce that defensiveness, and one result obviously could be a hardening of the lines between politically active Christians and those with different beliefs.
More to the point, the characteristic that separates the Religious Right from other groups seeking similar influence in secular matters is their attitude that they are not only right on their issues but occupying the only moral high ground. Thus, for example, many fundamentalist leaders depict the debate over abortion rights as one between those who sanction murder and those who do not.
These are difficult questions for Americans, and for Republicans in particular because religious fundamentalism seems far more common among political conservatives. Indeed, one of the trickiest balancing acts in politics today is the one required of Republicans who may be opposed to abortion rights but not to all abortions under all circumstances.
Justice Scalia did not frame his speech in terms of the abortion issue or electoral politics. But it would be naive to believe it will not be seen that way.
Pub Date: 4/17/96