I still suspect Emilio Garza of the Fifth Circuit will be Bush's first appointment to the Supreme Court.

Just out of curiosity (and because this will almost certainly be the defining issue of any Supreme Court nomination debate)...Do you know McConnel's stand on Roe v. Wade?

(personally, I think no one should be able to float a name as a supreme court nominee without giving the reader information about what that candidate has said about Roe v. Wade. If nothing else, it just lets the reader figure out where things will fall when the real debates begin.)

Balta wrote:

Just out of curiosity (and because this will almost certainly be the defining issue of any Supreme Court nomination debate)...Do you know McConnel's stand on Roe v. Wade?

McConnell has been critical of Roe, but that's neither a surprise nor a concern to me. Many prominently pro-choice legal scholars are critical of Roe, and I don't think anyone considers it an incisive bit of legal reasoning. It's a pretty poorly conceived decision, regardless of how one feels about abortion. In his confirmation hearings for the 10th circuit, he did say that while he is opposed to abortion and thinks that Roe was a badly reasoned opinion, he also accepts that it is now settled law and is accepted by the majority of Americans. So on the question of abortion, he's about as moderate as could be hoped for.

Michael's opinion about Garza being the first choice is certainly possible as well. I think everyone pretty much knows the short list of 7 or 8 people likely to be nominated. Garza is undoubtedly on that list and could well be nominated.

I'd say McConnel is a likely choice to be Chief J. But, I would not be surprised to see Garza, Miguel Estrada, or Alberto Gonzales, pop up as the nominee to be the first hispanic Justice if O'Connor or Stevens were to step down.

The thing that worries me about McConnell is what appears to be a strong opposition to church/state separation precident. Apparently he has been known to say such things as "We must therefore reject the central animating idea of modern Establishment Clause analysis: that taxpayers have a constitutional right to insist that none of their taxes be used for religious purposes." Perhaps you're right that this is the best we can hope for, but to me, church/state separation is an essential aspect of American public life.

Jonathan wrote:

I'd say McConnel is a likely choice to be Chief J. But, I would not be surprised to see Garza, Miguel Estrada, or Alberto Gonzales, pop up as the nominee to be the first hispanic Justice if O'Connor or Stevens were to step down.

My suspicion is that Gonzales isn't going to be nominated, but Garza and Estrada are both pretty likely. Alito is another I think is high on the list. And if O'Connor retires, I think Edith Jones a very likely replacement.

In response to Balta:

If GWB nominates someone to the SCOTUS (or any other court for that matter), don't waste your time wondering where they stand on Roe; someone else has already done the homework for you.

worm eater wrote:

The thing that worries me about McConnell is what appears to be a strong opposition to church/state separation precident. Apparently he has been known to say such things as "We must therefore reject the central animating idea of modern Establishment Clause analysis: that taxpayers have a constitutional right to insist that none of their taxes be used for religious purposes." Perhaps you're right that this is the best we can hope for, but to me, church/state separation is an essential aspect of American public life.

McConnell's views on church/state separation are a concern to me, certainly, but not so much because of that statement. I think that statement is perfectly reasonable. For instance, I think that Locke v. Davey was decided incorrectly. Where a general public program gives scholarship money to a student for high achievement, I don't think there should be limits placed upon the type of college it can be used to pay for, or the type of program of study one can pursue while using that scholarship money. Yes, that means some amount of public money ends up going to a religious college, but there is no establishment clause violation because the benefit is general and the use of it is up to each individual to decide. Likewise, education vouchers programs are not a problem in my view and for much the same reason.

McConnell is generally an accomodationist on church/state matters. That's a position I disagree with, but it's not an "out of the question" kind of position. Certainly any honest person has to recognize that a sizable portion of the founders were accomodationist while some were more staunchly separationist (Madison in particular). Madison's views have won the day for the most part (though even most separationists today would not argue against military chaplains, as Madison did), and I generally think that's a good thing. But accomodationism, absent any sort of coercion, has a long history and is a legitimate and reasonable position to take on such matters.

As for Roe v. Wade, there is no chance at all that Bush will nominate someone that strongly supports it. The best we can hope for is an honest conservative that might be reluctant to make a radical change that overturns 30 plus years of precedent.

Besides, since Rehnquist is on record as opposing Roe v. Wade, and consistently votes to restrict abortion whenever the issue presents, an anti-choice replacement for him won't change the current balance of power on the issue.

Wait until O'Conner or Stevens leaves, and watch Democratic Senators pull out all the stops to prevent an anti-choice replacement. Also, any opening close to the 2008 election might create strong Democratic action to delay a replacement until after the election.

From your description of him, McConnell might be the best we can hope for and would probably be confirmed. Therefore, I doubt if Bush will nominate him. I think he'll nominate someone more radical and dare the Democrats to filibuster.

Common Knowledge wrote:

As for Roe v. Wade, there is no chance at all that Bush will nominate someone that strongly supports it. The best we can hope for is an honest conservative that might be reluctant to make a radical change that overturns 30 plus years of precedent.

I've actually got a different theory about this. I don't think the political leaders of the Republican party want to see Roe overturned at all. I think they know that if that happens, the Republicans become the minority party for the next decade. As long as abortion remains a judicial issue, it can be safely railed against. Return it to the states as a legislative issue and the swing voters and moderates will abandon the party in droves. Poll after poll has consistently shown that 2/3 of the American public wants abortion to remain legal. They'll accept limitations on it like waiting periods and parental or spousal notification, and they'll accept a ban on partial birth abortions, but they want abortion to remain legal, period.

I think that's a basically correct read of the politics, Ed -- or, rather, of half of the politics. The other half, which may not be possibly to square with the half you discuss, is that the core of the GOP base is pretty darn insistent on getting Roe overturned, and have made more than a few noises that they won't let themselves get 'Soutered' again. So the GOP may find itself between a political rock and a hard place.

I guess the question for Worm and Ed is whether they wish their personal views to prevail even if the Constitution has to be tortured and re-written by unelected oafs, or, would they rather be correct and law abiding. The prospects of Republicans growing spines is remote but their becoming (I doubt it very much) a minority party for a decade would be a small price to pay to stop another 45,000,000 murders.

I think there's some strategy at work here in the White House. When it comes to abortion, replacing Rehnquist with a new anti-abortion justice is a 1-for-1 trade. In other words, it doesn't get them any closer to overturning Roe or Casey. To make a splash on abortion, Bush needs a pro-abortion judge like O'Connor to step down. With that in mind, nominating a reasonable, conservative-but-not-outrageous replacement for Rehnquist like McConnell makes good sense. The If Bush can convince O'Connor or Stevens that they will be replaced by someone similar to McConnell, they they are more likely to retire.

As for the politics, I think the closer we get to the end of Bush's reign, the more tempted he'll be to make his legacy the end of abortion laws. He views the theocrats as his biggest supporters and overturning Roe would be the ultimate final love letter...

Where a general public program gives scholarship money to a student for high achievement, I don't think there should be limits placed upon the type of college it can be used to pay for, or the type of program of study one can pursue while using that scholarship money.

Thanks for the clarification. After doing a little more reading & thinking about it, I agree with you (and I guess McConnell as well) here, and in some ways it seems Locke v Davey actually violates the Establishment Clause in that it keeps people from freely practicing (or studying) religion. If this is the extent of his accomodationist stance, then I have no problem with it. However, I think I'll need to look into this issue further...

I think Scalia is the logical choice to become Chief Justice. I don't agree with a fair portion of his jurisprudence, but I think he's a competent judge. I certainly think he's more competent than Thomas.

It's not going to be Stephens, Breyer, Souter or Ginsburg. O'Connor's getting a little long in the tooth herself. The wingnuts have been foaming about Kennedy for some reason or other.

So, I say it's either the new person or Scalia.

The liberals already fought McConnell hammer and tong once--for 555 days. He didn't even get a hearing for 16 months, and that was for his circuit nomination.

While I would love to see your optimism about his Supreme Court confirmability bourne out, I think it's naive. I'd bet my house the Dems will throw everything they have at stopping him.

Anyone who is not lockstep in favor of Roe v. Wade is a hill they will die on. It's their very definition of "extreme."

(P.S. "No people ought to feel greater obligations to celebrate the goodness of the Great Disposer of Events and of the Destiny of Nations than the people of the United States. His kind providence originally conducted them to one of the best portions of the dwelling place allotted for the great family of the human race. He protected and cherished them under all the difficulties and trials to which they were exposed in their early days. Under His fostering care their habits, their sentiments, and their pursuits prepared them for a transition in due time to a state of independence and self-government. In the arduous struggle by which it was attained they were distinguished by multiplied tokens of His benign interposition. During the interval which succeeded He reared them into the strength and endowed them with the resources which have enabled them to assert their national rights and to enhance their national character in another arduous conflict, which is now so happily terminated by a peace and reconciliation with those who have been our enemies. And to the same Divine Author of Every Good and Perfect Gift we are indebted for all those priviledges and advantages, religious as well as civil, which are so richly enjoyed in this favored land.

"It is for blessings such as these, and more especially for the restoration of the blessing of peace, that I now recommend that the second Thursday in April next be set apart as a day on which the people of every religious denomination may in their solemn assemblies unite their hearts and their voices in a freewill offering to their Heavenly Benefactor of their homage of thanksgiving and of their songs of praise."

--Staunch Separationist President James Madison, declaring a National Day of Thanksgiving, March 4, 1815)

I guess the question for Worm and Ed is whether they wish their personal views to prevail even if the Constitution has to be tortured and re-written by unelected oafs

Well, I don't think it is just my personal view that there should be a separation between religion and politics. In fact, the idea that someone could impose their personal views of morality on the rest of the nation is precisely what concerns me. America was founded as a liberal democracy so that the majority could not impose their narrow view of morality on minority groups. I'm not sure why you bring up abortion, since I have not raised Roe v Wade as an issue, and Ed seems to think that it is a dubious decision in legal terms. For the record, you won't hear me defending Roe v Wade either, so you can pick that fight with someone else.

Doug wrote:

I think Scalia is the logical choice to become Chief Justice. I don't agree with a fair portion of his jurisprudence, but I think he's a competent judge. I certainly think he's more competent than Thomas.

Scalia has been openly campaigning for the job, but the problem with him is that he's so divisive. Scalia is a bombthrower, not a consensus builder. The greatest praise for Rehnquist as Chief Justice has come as a result of him being scrupulously fair in terms of assigning opinions and in putting the prestige of the court ahead of his ideological concerns. Scalia, on the other hand, has been known to go after his fellow justices with abandon when he disagrees with them, and that's something that could really harm the collegiality of the court and damage the perceptions of his fairness. On the other hand, the conferences would get a lot more interesting; unfortunately, none of us are allowed to listen in on them. I rather like Scalia's style of making bold statements of principle, despite disagreeing with him often. But as a chief justice? I'm not sure that'd be healthy for the court.

As far as competence goes, I think Scalia and Thomas are both competent judges. I think Thomas is actually more consistent and principled than Scalia is, while Scalia is a better writer. As I've written many times, I think Thomas has taken an enormous amount of unwarranted criticism. I have criticized him myself (and will be writing a long post in the near future criticizing his views on the establishment clause) for his views on some issues, but a hell of a lot of the criticism aimed at him has nothing to do with his views or with the quality of his work. Watching Harry Reid babble incoherently trying to defend his ridiculous assertion that Thomas is an "embarrassment to the court" was delightful to me.

If it was up to me, I'd make Kennedy the chief justice, but as you said, the religious right will go ballistic over that because of his written opinion in Lawrence. In the world of simplistic perceptions that is American politics, that's all it takes for the (self)righteous to decide that Kennedy is a culture war liberal bent on allowing evil to flourish.

Common Knowledge wrote: "As for Roe v. Wade, there is no chance at all that Bush will nominate someone that strongly supports it. The best we can hope for is an honest conservative that might be reluctant to make a radical change that overturns 30 plus years of precedent."

Just because something has a 30-year pedigree and has become settled law it should not be overturned? I know this was the faulty logic of Casey, but it should be noted that Plessy and Dred Scott were long-standing precedents and settled law. Does that alone mean they should not have been overturned?

John R. wrote:

The liberals already fought McConnell hammer and tong once--for 555 days. He didn't even get a hearing for 16 months, and that was for his circuit nomination.

When McConnell was first nominated, the Democrats had control of the Senate. The Republicans took control of the Senate after the November 2002 elections. The delay in McConnell's nomination was done for petty political reasons (mostly just to irritate Orrin Hatch), not ideological reasons. They didn't let him out of committee until just after the 2002 elections, knowing that once the new Senate was seated in January, he'd get out of committee anyway. Once the hearing was held in the judiciary committee, McConnell breezed through with virtually no opposition. Only Durbin spoke against him, and he was confirmed on a voice vote. Even Patrick Leahy supported his nomination. He received a unanimous top rating from the ABA, had the support of over 300 legal scholars including liberals like Larry Tribe and Cass Sunstein, and even the Washington Post endorsed him. There will certainly be opposition to him from the usual list of liberal advocacy groups, but there's no way they'd be able to stop that nomination and they know it.

"It is for blessings such as these, and more especially for the restoration of the blessing of peace, that I now recommend that the second Thursday in April next be set apart as a day on which the people of every religious denomination may in their solemn assemblies unite their hearts and their voices in a freewill offering to their Heavenly Benefactor of their homage of thanksgiving and of their songs of praise."

--Staunch Separationist President James Madison, declaring a National Day of Thanksgiving, March 4, 1815)

What you leave out here is that Madison later regretted very much bowing to the pressure of issuing this day of proclamation. His Detached Memoranda ends with a statement against the issuing of such proclamations as an encroachment on the first amendment that should be guarded against. He also made a long and detailed argument against military and congressional chaplaincies in that document, for the same reasons. I wouldn't go nearly that far myself, but it was nonetheless his position.

worm eater-

Just a caution. I've learned over the last few months not to bother answering "anonymous". No good can come of it, I assure you.

John R wrote:

Anyone who is not lockstep in favor of Roe v. Wade is a hill they will die on. It's their very definition of "extreme."

As I said, the Democrats will pull out all the stops on this if Bush gets to nominate someone in place of one of the pro-Roe majority. They’ve also clearly decided which circuit court nominees to filibuster in part based on which circuits might shift from a close divide or a pro-Roe majority to an anti-Roe majority. On the other hand, they have allowed the confirmation of over 200 Bush judicial nominees, and I’d guess all of them are against Roe in one degree or another. Of course they know that Bush will appoint only anti-Roe judges. They have to pick their battles on this issue, and I don’t think McConnell would be one of them.

Tibor wrote:

Just because something has a 30-year pedigree and has become settled law it should not be overturned?

Of course Plessy and Dred Scott were horrible decisions that deserved to be overturned, and I know a lot of people classify Roe as the same. However, it took nearly 60 years before Brown overturned Plessy (I’m not sure about Dred Scott – since it became moot, was it actually overturned?) This was after the moral sense of the country had gradually shifted on the subject of race relations to a more tolerant view (except in most of the South, of course). The Supreme Court would never have overturned Plessy absent this shift. Despite the vocal protestations of the religious right, abortion rights enjoy solid support in this country. Unless and until the consensus view changes substantially, precedent should prevail in Roe.

I'm pretty sure the 13th and 14th Amendments mooted Dred Scott so there probably wasn't a reason for the Supreme Court to do so.

Kennedy is by far the best choice for chief, but because of his age and Lawrence, he will never be nominated. McConnell will be an ok justice, he's the favorite to get nominated, and he's likely to easily pass. The best case scenario, which has been floating on the legal blogs, is that someone besides the chief steps down at the same time. O'Conner or Kennedy have been mentioned. Bush is really best off with a two for one, because he can nominate a real conservative plus a moderate at once, passing the buck. Thus he could nominate a Posner and a Brown without any difficulties.

Just an endorsement, but a topic on the SC blogs is who could pass 100-0. The man who came up is Posner, the judge all moderates love. He'd never pass 100-0 because both the left and the right hate him, but in an ideal world we'd have 9 judges like him. Agora fans, flame away.

Thank you for the backhanded endorsement Mr. Ed. Will your upcoming article address the Thomas opinions that cite P. Hamburger's work?

The man who came up is Posner, the judge all moderates love. He'd never pass 100-0 because both the left and the right hate him, but in an ideal world we'd have 9 judges like him. Agora fans, flame away.

Why would you anticipate flaming? ITA endorsed Posner for the position over six months ago.

I haven't heard any speculation about it, but is there a possibility of nominating Orrin Hatch to SCOTUS? He's conservative and as a Senator who (I think) is generally well-liked on both sides of the aisle might well be confirmable without a bloodbath. It would also revive a tradition of nominating Justices with extensive political experience (Hughes, Black, Warren).

Dave wrote:

I haven't heard any speculation about it, but is there a possibility of nominating Orrin Hatch to SCOTUS? He's conservative and as a Senator who (I think) is generally well-liked on both sides of the aisle might well be confirmable without a bloodbath.

I've heard a lot of speculation about Hatch in the past, but virtually none in the last few years. I have heard Jon Cornyn's name thrown around a bit. Both are quite conservative, but the Senate would generally be more deferential to one of their own so that would certainly make confirmation easier.

When is our anon friend, going to live up to previous wagers.

Ed and Wormeater,

You two stated:

Where a general public program gives scholarship money to a student for high achievement, I don't think there should be limits placed upon the type of college it can be used to pay for, or the type of program of study one can pursue while using that scholarship money.

Thanks for the clarification. After doing a little more reading & thinking about it, I agree with you (and I guess McConnell as well) here, and in some ways it seems Locke v Davey actually violates the Establishment Clause in that it keeps people from freely practicing (or studying) religion. If this is the extent of his accomodationist stance, then I have no problem with it. However, I think I'll need to look into this issue further...

***

But Locke v. Davey doesn't forbid states (or federally funded colleges) from providing scholarships that will be used for theological studies, it merely permits states to determine that they don't want scholarship money to be used to study theology. I believe the Court made clear this important "play in the joints" aspect of their decision. States have latitude to decide whether to restrict scholarships to non-theological studies or to not restrict scholarships on that ground.

To be against Locke, you have to believe that states should not be allowed to limit scholarships to non-religious study. That's a defensible view, but, to me, your posts both muddled this important distinction. (Particularly as you suggest Locke violates the Establishment clause. First, it can't. Second, the principle violated, if any, is the Free Exercise clause. The two conflict and the Justices decided that although the Establishment Clause didn't require the scholarship program to operate as it did, the Free Exercise Clause didn't forbid it to so operate.)

I think it was a decent split-the-baby decision.

Kerry wrote:

But Locke v. Davey doesn't forbid states (or federally funded colleges) from providing scholarships that will be used for theological studies, it merely permits states to determine that they don't want scholarship money to be used to study theology. I believe the Court made clear this important "play in the joints" aspect of their decision. States have latitude to decide whether to restrict scholarships to non-theological studies or to not restrict scholarships on that ground.

Yes, I understand the distinction, but I still think the decision was incorrect. I think it showed a hostility to religion that is not permitted under controlling precedent by singling out only theological studies for a prohibition. Obviously, the court disagreed.

Ed,

Yes, Madison later changed his mind. But are we to read the Constitution through the revised views of some people who were involved in it 40 or 50 years after the fact, or are we supposed to read it according to what they meant when they wrote it and when it was ratified? Again, Madison is an instructive guide here:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers....What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.

(--letter to Henry Lee, June 25, 1824)Regarding McConnell, I'd love for you to be right. But I still don't think you are.

The highly politicized ABA's rating these days counts for bupkis (look what it did for Miguel Estrada and Charles Pickering and Carolyn Kuhl and Robert Bork etc. etc. etc.), as does the support of a notable liberal here or there.

And I think you wildly underestimate the influence of groups like PFAW, NARAL, the Alliance for Justice and the ACLU in Democratic politics. They're not "fringe groups." They call the shots. (Just read the leaked memos for confirmation.)

He wasn't opposed for ideological reasons? Please. It was not by accident that McConnell was included with Pickering and Owen in the group that was stonewalled. They let McConnell through only days after being smeared in the 2002 elections, and most of the Dems didn't show up to vote on him. Orrin Hatch, his biggest, home state supporter, was going to take over the judiciary committee. It was a butt-covering move for the Dems, plain and simple. This year is not an election year, and the Supreme Court is the whole enchilada.

Roe (and his many statemenst against it) was continuously brought up during McConnell's first confirmation battle, and it's the absolute Democrat litmus test for the SCOTUS. I'll be happy to be proven wrong. But I'd bet my house they'll throw everything they've got at him.

John R. wrote:

Yes, Madison later changed his mind. But are we to read the Constitution through the revised views of some people who were involved in it 40 or 50 years after the fact, or are we supposed to read it according to what they meant when they wrote it and when it was ratified?

Madison didn't change his mind, he violated the principles for which he proposed the first amendment and regretted having done so. He didn't just decide later it meant something different. I'd ask the same question Harry Jaffa asks: are we to be guided by the principles these men expounded, or by their sometimes contradictory application of them? I'm not arguing that strict separation is the only way to interpret the first amendment, I'm merely arguing that it is one of the two primary ways one can interpret it, and that comes directly from the founders themselves. Both strict separation and accomodationism can be traced directly to the founders, which means it's not quite as simple as finding "the" original intent or original understanding of those provisions. And finding an instance in which Madison violated his own standards does not make those standards any less compelling.

And I think you wildly underestimate the influence of groups like PFAW, NARAL, the Alliance for Justice and the ACLU in Democratic politics. They're not "fringe groups." They call the shots. (Just read the leaked memos for confirmation.)

I'm always a bit amused by this feigned outrage over "leaked memos" showing that a party coordinates their efforts with powerful advocacy groups among their constituents. Partisans react with horror, as though the other party didn't do the exact same thing. The Republican party coordinates their efforts with groups like Focus on the Family just like the Democratic party coordinates their efforts with People for the American Way and similar groups. Indeed, on this very same issue of judicial appointments, prominent organizations like the American Center for Law and Justice have been appointed specifically to defend and provide cover for Bush's nominees. Just like there is opposition research, there is anti-opposition research and both parties work with advocacy groups on such matters. Karl Rove even holds weekly strategy sessions with James Dobson and other prominent religious right leaders. Those groups try to exert maximum influence on the party, but parties are not ideological first and foremost, they are utilitarian. The interests of the party's ideologues are counter-balanced by lots of other things that form political reality.

Roe (and his many statemenst against it) was continuously brought up during McConnell's first confirmation battle, and it's the absolute Democrat litmus test for the SCOTUS. I'll be happy to be proven wrong. But I'd bet my house they'll throw everything they've got at him.

Well okay, but perhaps you should reread what I said. I didn't say those groups wouldn't oppose him. In fact, I said they would. But I also said they won't be successful and they won't be able to garner nearly enough support among Democrats in the Senate to be a threat to his nomination. You have to look at all of the factors and how they interact and not just look at each individual factor and say "hey, that didn't help Bork" or someone else. When you add up all of those factors, I think you have as close as you can possibly get to an easily confirmable nominee.

There will be a fight, and they will certainly mine all of McConnell's voluminous writings for arguments to use against him. In fact, they've already done so and they probably already have talking points, memos, op-ed pieces, and maybe even TV commercials in the can and ready to go. I'll probably even be critical of him myself on some of those things. And that's okay, isn't it? Politics is about the clash of ideas and interests. But in the end, there isn't enough there to stop him from being confirmed. He's not Robert Bork (he doesn't have his track record of saying completely loony things), who was rightly and justifiably kept off the court. McConnell is a serious and independent minded scholar with broad support across the political spectrum. If nominated, he'll get through.

Check out this interesting journal article on the ideology of potential Bush Supreme Court nominees. The study doesn't rank McConnell, but it's worth a look:
http://www.umassd.edu/cas/polisci/bushsct.pdf

One interesting thing I've noticed in my study of Founding documents and speeches where our Founders did mentioned "God" or the "Supernatural" -- exactly as Madison is quoted -- is that they did so in ways that systematically avoided explicitly Christian language.

They often alluded to an overriding "Divine Providence" but almost never "Jesus Christ" never citing versus and chapters of Scripture, and never in Trinarian langauge (which makes sense given that the most prominent Founders -- Washington, Adams, Jefferson, Madison, and Franklin -- disbelieved in the Trinity, and were private heretics according to most understandings of orthodox Christianity of the day).

Similarly the Founders oft-mentioned "religion" and how it was good for society, but never defined "religion."

Our Founders (the men who Declared Independence in 1776 and established the Constitution in 1787 -- not necc. the men who ran the state governments) were extremely reasonable in setting the "lowest common denominator" bar of religion so low as to include pretty much any monotheistic belief system, which would include Trinitarians, unitarians, deists and heretics of every lot.

See my most recent posts on George Washington and his nominal religiousity.

We sometimes find error when we ascribe a belief to a founder and give the impression that because it was his belief or his position or that this was what he argued for that his position became enshrined. The temple, more accruately, were the actual words used and ratified by the signers and then by the people. Too, founder's do change their minds, for instance,it is well documented by Jefferson's letter to Macon that Construction Construed and Constitution Vindicated by John Taylor "...corrected some erring opinion into which I had slidden without sufficient examination". One of those errors was, I think, the unconstitutional invasions of states rights by the federal judiciary (judicial activism anyone?).

Ed, I am seriously unable to figure out what's going on here. You have your own blog, and you're posting much of the same commentary here. It's almost pointless to comment on your own blog, since the comments posted there aren't transcribed here and vice versa.

What gives?

Meanwhile, Jon gives a valuable link to a lecture by McConnell-Thanks!

Jon,

Unfortunately, your assertions do not bear historical scrutiny. It's the height of anachronism to expect Christians of the founding era to speak in 21st century evangelical terms.

When Washington talks about "an humble imitation of the divine author of our blessed religion," who exactly do you think he's talking about? That we are supposed to "imitate" a deistic spirit god?

And there is, of course, the Paris Peace Treaty, which begins "In the name of the most holy and undivided Trinity," and which was signed by Adams, Franklin, and Jay.

The fact that they didn't all wear Christianity on their sleeves or speak the way Christian theologians do is hardly evidence that their religious understanding wasn't the common, dominant religious understanding of the time--Trinitarian Christianity. Yes, we can see some of them drifting from this understanding late in life (Adams , for instance). And there were a couple who probably never held it (Franklin, Jefferson, Paine, and Ethan Allen). But in 1789, the vast majority of the signers of the Constitution were orthodox Christians. They signed the Constitution "in the year of our Lord," no mere convention considering the proponents of the French Revolution (which supposedly was so influential upon the Founders) started a new dating system to explicitly repudiate Christianity.

"Nominal" "heretic" Christian George Washington told the Delaware Indians in 1779, "You do well to wish to learn our arts and ways of life, and above all, the religion of Jesus Christ. These will make you a greater and happier people than you are. Congress will do everything they can to assist you in this wise intention; and to tie the knot of friendship and union so fast, that nothing shall ever be able to loose it." He also recited the Apostles Creed weekly as a vestryman in the Anglican Church.

Madison's personal Bible shows his own handwritten notes, in which he says things like "Holy Ghost. have ye recd. the Holy Ghost since ye Believed. The Apostle does not mean in its Sanctifying operations, but in its miraculous Gifts" and "Christ is a Greek name and signifies Anointed. v. 1...Christ did by the power of his Godhead purify our nature from all the pollution of our Ancestors."

Etc. etc. etc. All of this information is publicly available in their own writings for those who seek the truth rather than simply regurgitating the revisionist history proferred over the past 70 or 80 years.

Ed,

If that was Madison's understanding of the First Amendment, it certainly was not the understanding of those who ratified it, as demonstrated by their own actions in, for instance, declaring a national day of thanksgiving the very next day after ratifying it.

And you've changed arguments on me regarding the filibuster. "The Republicans do it too" isn't an argument. I fully agree. Interest groups exert influence on both sides. The point is, being pro-abortion is the Democrat litmus test on nominees. Whether that's because of interest groups or whatever, it's non-negotiable. I can only hope the opposite will become non-negotiable to Republicans. But the fact remains that the Dems are in the pockets of these pro-abort interest groups. Why do you think it is that every formerly pro-life Democrat to run for president in the last 20 years has had to change his or her public position on the issue?

If the nominee is McConnell, they will attempt to filibuster him. If public outcry ends it, great. But I guarantee you they'll try it.