Law & the Courts

Did Durbin and Feinstein Impose a Religious Test for Office?

Sen. Dick Durbin on Capitol Hill (Yuri Gripas/Reuters)
Conservatives question the Democrats’ grilling of appeals-court nominee Amy Coney Barrett.

A judicial confirmation hearing this week stoked fears among conservatives that it is becoming acceptable on the American left to voice intensely anti-Christian sentiments.

On Wednesday afternoon, the Senate Judiciary Committee held a hearing for Amy Coney Barrett — a law professor at the University of Notre Dame and President Trump’s nominee to the Seventh Circuit Court of Appeals — during which two senators, Dianne Feinstein (D., Calif.) and Dick Durbin (D., Ill.), suggested that Barrett’s Catholic faith might disqualify her from serving as a judge.

“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.”

Durbin, meanwhile, criticized Barrett’s prior use of the term “orthodox Catholic,” saying it unfairly maligns Catholics who do not hold certain positions about abortion or the death penalty. “Do you consider yourself an orthodox Catholic?” he asked her outright.

Their comments immediately met with criticism from many on the right, some of whom considered these remarks an unconstitutional religious test for public office.

“The Amy Barrett hearing, along with the [confirmation hearing of Office of Management and Budget deputy director nominee Russ Vought] and the Southern Poverty Law Center labeling Alliance Defending Freedom and Family Research Council ‘hate groups,’ reveals a new disturbing trend: Anti-Christian sentiments which were once only whispered behind closed doors are now being proclaimed from the rooftops by the most powerful people in society,” Ryan T. Anderson, a research fellow at the Heritage Foundation, told National Review today.

“Professor Barrett was improperly questioned by the senators in three ways, with respect to reason, constitutional law, and the common good,” said Chad C. Pecknold, associate professor of systematic theology at the Catholic University of America. “It was an irrational line of questioning because it was based on a misreading of a 20-year-old article which attributed to the professor views contrary to the article itself. It was also unconstitutional, violating the prohibition against religious tests for public office.”

Pecknold went on to say that the senators’ questions were just as harmful to the common good as ethno-nationalism is: “At a time in which the nation is badly frayed, disoriented, and confused, United States senators abused their high office to berate, slander, and demean a woman of exceptional legal wisdom simply because they suspected that aspects of her Catholic faith would make her an unjust judge.”

But it wasn’t just conservative Catholics who were disturbed by the questioning Barrett faced on Wednesday. “Dianne Feinstein, Steve Bannon — the latest adolescent, uneducated anti-Catholic tropes are embarrassing for a nation that’s 1/4 Catholic,” tweeted Christopher J. Hale, executive director of the Obama-supporting interest group Catholics in Alliance for the Common Good. (Bannon suggested earlier this week that Catholic bishops in the U.S. support immigration reform only because they need Hispanic immigrants to fill the pews in Catholic churches.)

And Father James Martin, S.J., a Catholic priest who frequently espouses progressive views on social issues, tweeted a video of Feinstein’s comments, adding, “Throwback to an era when Catholics were seen as unthinking tools of the Pope. You can be a good Catholic citizen in our country. Ask JFK.”

Feinstein’s press secretary gave NRO a statement yesterday, attempting to clarify the senator’s comments. “Professor Barrett has argued that a judge’s faith should affect how they approach certain cases,” Ashley Schapitl claimed. “Based on this, Senator Feinstein questioned her about whether she could separate her personal views from the law, particularly regarding women’s reproductive rights.”

“I prefaced my remarks by saying that going into a person’s religion is not the right thing to do in every circumstance. But she’s been outspoken,” Durbin told National Review. “As a law-school professor at Notre Dame she has taken on the tough challenge of how a person with strong religious beliefs becomes a judge and looks at American law. So I think she has fashioned herself somewhat of an expert and I didn’t feel uncomfortable asking that question.”

Several Republican senators on the Judiciary Committee, meanwhile, told National Review they were concerned about the way that Feinstein and Durbin had grilled Barrett.

“Qualifications for judicial service include legal experience and judicial philosophy, but not a nominee’s personal religious beliefs,” said Orrin Hatch (R., Utah). “Democrats often argue that judges can base decisions on their personal views, at least when those views produce liberal political results. I have yet to find an example of similar concern over the religious beliefs of liberal nominees or nominees from other faith backgrounds.”

Arizona senator Jeff Flake agreed. “I’m a firm believer that judicial nominees ought to be evaluated on their qualifications and how they approach the law, not on how they practice their faith,” he explained. “Such questions are not only inappropriate, they suggest a religious test.”

“As a religious minority myself, I respond very quickly when questions come up about people’s religious beliefs,” said Mike Lee (R., Utah), who, like Hatch and Flake, is a Mormon. “I don’t want to put thoughts into the head of any colleague, so I don’t purport to speak for Senator Feinstein here,” he added. “But if we routinely ask about people’s religious beliefs based on skepticism about the views they hold, that’s very troubling.”

Like Anderson, Lee mentioned this summer’s confirmation hearing for Russ Vought. At the hearing, Vermont senator Bernie Sanders asked Vought whether he thought non-Christians will be condemned. Sanders subsequently decided not to vote for Vought because of his Evangelical Christian beliefs.

Vermont senator Bernie Sanders asked Vought whether he thought non-Christians will be condemned.

“That, to me, started feeling like a religious test to be imposed on someone on the basis of what they believe. And that’s wildly inappropriate,” Lee said. “There are a couple provisions of the Constitution that have something to say about that.”

During Wednesday’s hearing, Republican senator Ben Sasse of Nebraska asked Barrett to explain the substance and importance of the religious-test clause of the Constitution. “I think some of the questioning that you’ve been subjected to today seems to miss some of these fundamental constitutional protections that we all have,” he added.

“If you were to describe what happened with Mr. Vought and Professor Barrett as a religious test, that would be a sad commentary on our nation,” Lee added. “If someone’s going to be disfavored as a result of their religious beliefs, that’s really troubling. . . . This could amount to favoring a secular, progressive creed over certain religious views.”

“Suggesting that a Catholic nominee who takes her faith seriously cannot be an impartial judge smacks of old-fashioned bigotry,” Hatch agreed.

The committee has yet to vote on Barrett’s nomination, but conservatives are hopeful that the eventual vote will be in her favor. “Not only did Barrett display legal reason and grace in response, she showed why the Catholic faith is not contrary to reason, law, or the common good, but positively elevates it,” Pecknold said. “In the face of ideology, Professor Barrett deserves the admiration of the nation. She also deserves to be confirmed.”

    READ MORE:

    WATCH: Sen. Feinstein Attacks Judicial Nominee’s Catholic Faith

    Dianne Feinstein vs. Amy Coney Barrett

    Democrats are Getting More Comfortable with Religious Tests

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