Democrats assail a judicial nominee's faith

  • 8 September 2017
  • NormanL
Democrats assail a judicial nominee's faith

Article Six of the U.S. Constitution clearly states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Those words ought to be clear to even the dullest of elected officials. But as some Democratic Senators showed, it's possible to skate very close to the religious test clause when it suits their political ends:

...during a confirmation hearing for 7th Circuit Court of Appeals nominee Amy Coney Barrett, Democratic senator Dianne Feinstein attacked the nominee for her Roman Catholic faith.

Barrett is a law professor at the University of Notre Dame who has written about the role of religion in public life and delivered academic lectures to Christian legal groups. Drawing on some of these materials, Feinstein launched a thinly veiled attack on Barrett’s Catholic faith, asserting that her religious views will prevent her from judging fairly.

“When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said. “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.” Feinstein is clearly hinting here at the Supreme Court decision in Roe v. Wade, a ruling that Feinstein supports so vociferously that she has even called it a “super-precedent.”

Feinstien, unfortunately, wasn't alone in disparaging Barrett's faith:

Other Democratic senators took issue with Barrett over her faith as well. Senate minority whip Dick Durbin criticized Barrett’s use of the term “orthodox Catholic,” insisting that it unfairly maligns Catholics who do not hold certain positions about abortion or the death penalty. (Durbin himself is a Catholic who abandoned his previous pro-life position.) “Are you an orthodox Catholic?” he later asked Barrett point blank.

And Hawaii senator Mazie Hirono snarked, “I think your article is very plain in your perspective about the role of religion for judges, and particularly with regard to Catholic judges.”

We could dismiss this as Democrats looking for any excuse to vote against a judicial nominee who might, possibly, issue abortion rulings from her court perch. But that gives the Democrats to much cover for a genuinely ugly line of questioning.

As John Garvey, the president of Catholic University in Washington, D.C. who co-authored a law review article with Barrett on matters of faith and the lawwrote:

Senators Durbin, Hirono, and Feinstein seemed particularly troubled by Barrett's Catholicism. I don't think they objected to her membership in the Church plain and simple. That would violate the Religious Test clause of the Constitution. Nor do I think they were really worried that she, like Pope Francis, opposes the death penalty.

I suspect what really troubled them was that, as a Catholic, her pro-life views might extend beyond criminal defendants to the unborn. If true, the focus on our law review article is all the more puzzling. After all, our point was that judges should respect the law, even laws they disagree with. And if they can't enforce them, they should recuse themselves.

While not a religious test in bright letters, it comes awfully close, and uses language that ought to be both troubling, and widely denounced.