Cooper: Judicial religious tests a bad sign

Cooper: Judicial religious tests a bad sign

September 13th, 2017 by Clint Cooper in Opinion Free Press

Senate Judiciary Committee Chairman Sen. Charles Grassley, R-Iowa, left, confers with ranking member, Sen. Dianne Feinstein, D-Calif., during a recent hearing on Capitol Hill in Washington.

Photo by Manuel Balce Ceneta

University presidents usually fall over themselves trying to steer clear of anything that might show partiality to conservatives, but the presidents of Princeton and Notre Dame universities recently wrote letters objecting to the confirmation hearing treatment of a nominee to the U.S. Circuit Court of Appeals by Republican President Donald Trump.

The nominee, Notre Dame law professor Amy Barrett, was questioned about her faith by Democrat senators Dick Durbin of Illinois, Dianne Feinstein of California, Al Franken of Minnesota and Mazie Hirono of Hawaii.

"Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship," Princeton President Christopher Eisgruber wrote to Feinstein and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, "the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution's 'no religious test' clause."

Beginning with the Supreme Court nomination of Robert Bork by President Ronald Reagan more than 30 years ago, Democrats have increasingly subjected Republican federal judge nominees to a worldview test. Then, by their remarks, and often by their votes, Democrats often vote against the judicial nominees if they do not share that worldview.

Related Article

Catholic leaders decry Dems' questioning of judicial pick

Read more

The questions in question this time had to do with Barrett's Catholic faith.

"Do you," asked Durbin, "consider yourself an orthodox Catholic?"

Article VI of the United States Constitution is very clear. "[N]o religious test," it says, "shall ever be required as a qualification to any office or public trust under the United States."

"When you read your speeches," Feinstein said, "the conclusion one draws is that the [Catholic] dogma lives loudly within you. And that's of concern when you come to big issues that large numbers of people have fought for for years in this country."

Without asking Barrett the actual questions, the octogenarian senator was signaling her concern that the nominee might hold views consistent with her Catholic faith — against abortion and against same-sex marriage — and might be willing to overturn current law on the issues.

It's Feinstein's right to examine the nominee's judicial philosophy but not to intertwine it with her faith.

Specifically, Barrett had written in the Marquette Law Review, examining what Catholic judges should do in death penalty cases, that judges faithful to church teachings "are morally precluded from enforcing the death penalty." She further said if a judge in good conscience is unable to follow the law in such a case, she should recuse herself and let another judge decide the case.

The senators, Durbin, a Catholic himself, and Feinstein, who attended a Catholic high school, or those aides who prepared questions for them, shouldn't have tried to cherry-pick the article, "Catholic Judges in Capital Cases." When they did, they missed the nominee's thorough explanation and even her emphatic first-page statement saying that "the general public are entitled to impartial justice."

Of course, the same senators hadn't asked similar religious questions of former President Barack Obama's last two Supreme Court nominees, Elena Kagan, a Jew, or Sonya Sotomayor, a Catholic.

During the same hearing, Franken asked Barrett — a former law clerk for the hated-by-the-left late Supreme Court Justice Antonin Scalia— about speaking honorariums she received from the religious-liberty nonprofit Alliance Defending Freedom, an organization Franken compared to former Cambodian dictator Pol Pot, whose regime was the cause of death of some 1 to 3 million people.

"I question your judgment," he said.

Sen. Bernie Sanders, I-Vt., had leveled a similar religious attack earlier this summer on Russell Vought, then the nominee as deputy director of the Office of Management and Budget. He was upset that in an article Vought authored he was critical of the often repeated phrase of everyone worshiping the same God.

"What about Jews?" the socialist senator asked. "Do they stand condemned, too?"

Although the recent religious attacks have brought criticism from Republicans ("some of the questioning seems to miss some of these fundamental constitutional protections" — Sen. Ben Sasse, R-Neb.), Democrats ("embarrassing for a nation that's one-fourth Catholic" — Christopher Hale, a former Obama staffer), college presidents and religious leaders, they're not likely to stop. Because, as Sen. Mike Lee, R-Utah, said on the Senate floor the day after the hearing, it's not religion that's the problem.

"These strange inquisitions," he said, "have nothing to do with the nominees' competency, patriotism, or ability to service Americans of different faiths equally."

They'd be unthinkable to our Founding Fathers, too. The Rev. John Jenkins, president of Notre Dame, suggested such in his letter to Feinstein.

"Indeed," he wrote, "[the dogma of one's faith was] lived loudly in the hearts of those who founded our nation as one where citizens could practice their faith freely and without apology."

No, we simply don't believe it squares with the Democrats' current worldview. Today, it's their way or the highway. Period.

Getting Started/Comments Policy

Getting started

  1. 1. If you frequently comment on news websites then you may already have a Disqus account. If so, click the "Login" button at the top right of the comment widget and choose whether you'd rather log in with Facebook, Twitter, Google, or a Disqus account.
  2. 2. If you've forgotten your password, Disqus will email you a link that will allow you to create a new one. Easy!
  3. 3. If you're not a member yet, Disqus will go ahead and register you. It's seamless and takes about 10 seconds.
  4. 4. To register, either go through the login process or just click in the box that says "join the discussion," type your comment, and either choose a social media platform to log you in or create a Disqus account with your email address.
  5. 5. If you use Twitter, Facebook or Google to log in, you will need to stay logged into that platform in order to comment. If you create a Disqus account instead, you'll need to remember your Disqus password. Either way, you can change your display name if you'd rather not show off your real name.
  6. 6. Don't be a huge jerk or do anything illegal, and you'll be fine.

Chattanooga Times Free Press Comments Policy

The Chattanooga Times Free Press web sites include interactive areas in which users can express opinions and share ideas and information. We cannot and do not monitor all of the material submitted to the website. Additionally, we do not control, and are not responsible for, content submitted by users. By using the web sites, you may be exposed to content that you may find offensive, indecent, inaccurate, misleading, or otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of the Times Free Press web sites and any content on the Times Free Press web sites, including, but not limited to, whether you should rely on such content. Notwithstanding the foregoing, you acknowledge that we shall have the right (but not the obligation) to review any content that you have submitted to the Times Free Press, and to reject, delete, disable, or remove any content that we determine, in our sole discretion, (a) does not comply with the terms and conditions of this agreement; (b) might violate any law, infringe upon the rights of third parties, or subject us to liability for any reason; or (c) might adversely affect our public image, reputation or goodwill. Moreover, we reserve the right to reject, delete, disable, or remove any content at any time, for the reasons set forth above, for any other reason, or for no reason. If you believe that any content on any of the Times Free Press websites infringes upon any copyrights that you own, please contact us pursuant to the procedures outlined in the Digital Millennium Copyright Act (Title 17 U.S.C. § 512) at the following address:

Copyright Agent
The Chattanooga Times Free Press
400 East 11th Street
Chattanooga, TN 37403
Phone: 423-757-6315
Email: webeditor@timesfreepress.com