Top court will have no Protestants with Kagan

WASHINGTON Tue May 11, 2010 4:21pm EDT

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WASHINGTON (Reuters) - The Supreme Court will be without a Protestant for the first time if Elena Kagan wins Senate confirmation, but experts said on Tuesday the court's religious makeup no longer matters the way it once did.

President Barack Obama has nominated Kagan, who is Jewish, to replace retiring Justice John Paul Stevens, the only Protestant on the nation's highest court. If Kagan is confirmed as expected, it will have six Roman Catholic and three Jewish justices.

That has received little attention, because politics and a nominee's ideological views have trumped religion as the most important factors in Supreme Court appointments.

In recent years, ethnic and gender representation have also played a far greater role than religion in the selection process, they said. Kagan would be the third female justice on the court and the fourth in history.

"Today, the prospect of six Catholics and three Jews seems to be insignificant, perhaps a real sign of religious maturity in the country's thinking about the court," said Stephen Wermiel, who teaches law at American University.

"Even though the court still has church-state issues to decide with some regularity, and even though those issues tend to deeply divide the court, there is no strong perception that there is a Protestant point of view or a Catholic or Jewish one," he said.

"Although I doubt that this debate or discussion is gone entirely from our public dialogue, the idea that a justice's views might be dictated by his or her religious faith now seems more remote than in the fairly recent past," Wermiel said.

Through at least the middle of the 20th century, there was one so-called Jewish seat and one Catholic seat on the court. These appointments were considered extremely important to reflect religious diversity on the court.

About half of Americans say they are Protestants, while about one in four say they are Roman Catholic, making the church by far the largest single denomination. Less than 2 percent of the population is Jewish.

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On the court, the Catholics are Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor, who Obama appointed last year as the first Hispanic.

The other two Jewish justices are Ruth Bader Ginsburg and Steven Breyer.

Benjamin Wittes, a senior fellow and research director in public law at the Brookings Institution, said the country has been more divided between religious and secular communities than among different religious denominations.

"For example, Justice Scalia is a hero even to the evangelical components of the religious right -- notwithstanding his Catholicism," Wittes said.

Scalia, the court's most outspoken Catholic, has said his religion does not affect his judicial views. Scalia does not follow Catholic teachings on the death penalty.

Scalia has long opposed the Supreme Court's landmark 1973 ruling that women have a constitutional right to an abortion. But he also noted that Justice William Brennan, also a Catholic, had been one of the court's strongest defenders of abortion rights.

Wittes said he did not think many people thought of Stevens as a justice who represented Protestants on the court.

"Over time, the representative quality of the Supreme Court appointments process will tend to gravitate toward the most salient fault lines in American life. Right now, interreligious disputes are pretty low on the list," he said.

On Monday, when Obama announced his selection of Kagan, several Jewish groups praised the choice, but made no mention of her religion.

Rabbi David Saperstein, director and counsel of the Religious Action Center of Reform Judaism said, "We will scrutinize her statements and writings to get a sense of her judicial philosophy and temperament and determine whether she will uphold the fundamental values that our movement supports."

(Editing by Eric Walsh)

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