Conrad in the Dock

Meet Robert Conrad. Once a college basketball star at Clemson University, he went to law school and then won a partnership at the well-respected firm of Mayer, Brown, Rowe, & Maw. Subsequently, he served for twenty years as a federal prosecutor in North Carolina. In 2005, he was nominated, and confirmed unanimously by the Senate, as the Chief Judge of the U.S. District Court for the Western District of North Carolina. President Bush nominated him to serve as an appellate judge on the Fourth Circuit in July 2007, one year ago. Yet the Senate Judiciary Committee has never held a hearing on his nomination, much less a vote. The Fourth Circuit has four vacant seats. Yet Conrad sits in a kind of intermediate existence, a nominee who has never been confirmed or rejected, in a kind of limbo.

“Limbo” is a word once widely used by Catholics to describe the state of those existing between this life and heaven. It is now somewhat in disfavor. Whether there is limbo or not, and who might be in it, is surely a quintessentially Catholic dispute. Yet it is fitting to use it in this context because Conrad is being opposed, at least in part, precisely because of just such intra-Catholic disputes.

To review briefly, the U.S. Constitution states in Article VI: “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Clearly then Conrad’s views on Catholic matters, which is to say about religious issues, may not be used as a reason for keeping him off the appellate bench. Whether he is a good or bad Catholic is not relevant; whether he is a good or bad lawyer is.

But that is not how Patrick Leahy sees it. Leahy is the chairman of the Senate Judiciary Committee. All presidential nominations to the federal courts come through that committee. And too often of late, they die there. Under Democratic control of the Senate Judiciary Committee, the pace of action on judicial nominations has slowed to a crawl. It is far from being cynical to conclude that the Democrats are trying to keep “conservatives” off the bench, waiting out the Bush administration in the hope it will be succeeded by a Democratic one.

When asked why the Conrad nomination was not moving, Leahy made a negative comment, noting Conrad was “the one who made the anti-Catholic comments about a nun.” Leahy, himself a Catholic, was referring to a letter written by Conrad in February, 1999 to the editors of a journal called Catholic Dossier. Conrad’s letter responded to an article that criticized a nun – the one to whom Leahy referred – Sister Helen Prejean. Sister Prejean is a well-known campaigner against the death penalty, who works with death row inmates and who wrote a book, Dead Man Walking, which was subsequently made into a powerful film.

Conrad commented that it was odd for her to be calling for the pope to announce and enforce an anti-death penalty view upon Catholics while she was highly critical of the Church and its clergy throughout her book. In other words, she seemed to support magisterial authority only when it served her political ends.

Given this context, it seems Leahy’s characterization of Conrad’s letter indicates Leahy thinks it is “anti-Catholic” if one does not oppose the death penalty. (Presumably, Leahy is not suggesting that in defending the Catholic Church and its hierarchy against what Conrad, at least, perceives to be unfair treatment by Sister Prejean, Conrad is not thereby being “anti-Catholic.”) Now, whether the Church has, or should have, a settled position against the death penalty (more on that in my next column) is an intra-Catholic question, which is hotly disputed. Some leading Catholics say the Church has such a settled position against the death penalty; others dispute this. Leahy presumably has a view on the issue; Sister Prejean does; and Conrad may as well. But under our Constitution, whatever Conrad believes on this Catholic question is irrelevant. What matters are his qualifications to be a judge.

And those qualifications are considerable – twenty years as a federal prosecutor, three years as federal district court chief judge, a high rating by the American Bar Association. Surely such a well-qualified person deserves a hearing and a vote. If Leahy, and others, do not find him qualified to serve, they should have the courage to say so in an open, public hearing, and they should vote against him. They should not use charges of “anti-Catholicism” to smear a good man, who is a Catholic citizen to be sure, but who, more importantly in this context, is a qualified lawyer and an experienced judge.

William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.