Roberts Hearings Likely to Enter Religious Territory

Democrats who push too hard could deepen a growing impression that they are secular elitists. According to a new survey by the Pew Forum on Religion and Public Life, 29 percent believe the Democratic Party is friendly toward religion, and 44 percent believe secular liberals have too much sway in the party.

Democrats were burned in 2003 when they blocked the nomination of Alabama Attorney General William H. Pryor Jr. to the 11th Circuit Court of Appeals, in part because of Pryor's personal opposition to abortion. Conservative groups ran ads suggesting Leahy and other Democrats were barring Pryor because of his Catholicism -- even though it was a Republican, Judiciary Committee Chairman Orrin G. Hatch (Utah) -- who asked Pryor about his Catholic faith during his June 11, 2003, confirmation hearing.

Some observers worry that Democrats will be drawn into a similar trap with Roberts, whose judicial record is sparse after two years on the U.S. Court of Appeals for the D.C. Circuit. Roberts weighed in on a variety of subjects as a lawyer for the Reagan administration, but those writings do not necessarily reflect his personal views.

"They want to get a read on the guy, and it's hard to find anything to grab onto -- so maybe [his Catholicism] would be an attractive line of questioning," said W. Clyde Wilcox, a Georgetown University government professor.

"You can understand a person better if you know the reason they've taken a position is from their faith," Wilcox said. But, he added: "Knowing someone is a Catholic doesn't really tell you where they are on abortion at all."

Patrick Trueman, senior legal counsel for the conservative Family Research Council, said that after surveying lawyers and reviewing Roberts's legal writings, and personal encounters with the nominee, "We have a measure of confidence that he would be better on our issues than Sandra Day O'Connor."

But Trueman also had high hopes for Anthony M. Kennedy, nominated by President Ronald Reagan in 1987 to replace Justice Lewis F. Powell Jr. Trueman, a Reagan Justice Department official, said the expectation within the Reagan administration was that Kennedy "would be opposed to Roe v. Wade based on his judicial philosophy."

Kennedy's religion attracted notice when it was reported that he had told then-Sen. Jesse Helms privately that he understood the North Carolina Republican's opposition to abortion "because I am a practicing Catholic." Questioned about the statement during his confirmation hearing, Kennedy said he was not trying to signal how he would rule in abortion cases. "It would be highly improper for a judge to allow his or her own personal or religious views to enter into a decision respecting a constitutional matter," he testified.

In 1992, Kennedy co-wrote the court's opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey , which upheld a woman's right to an abortion but permitted certain state regulations.

One way senators could broach the issue would be through a section of the American Bar Association's Model Code of Judicial Conduct that states judges should not preside over cases in which they have a financial "or other" interest. Democrats are debating whether to ask Roberts to interpret the section in the context of a decision by some Catholic bishops last year to refuse Holy Communion to Catholic politicians who support abortion rights. If such a ban were extended to Supreme Court justices, would Roberts consider that a sufficient "other" interest?

Schenck, who is planning a round-the-clock prayer vigil during the hearings, says he does not have high hopes. "We just think that the majority of lawmakers are incapable of dealing with the faith issue in an informed and intelligent way," he said. "We can never know what the nominee will do. Only God knows that."