Bench Memos

Law & the Courts

Are Senate Democrats Imposing a Religious Test for Judges?

“Do you consider yourself an orthodox Catholic?”

“I am a Catholic, Senator Durbin.”

This surreal question and answer occurred between Senate Minority Whip Richard Durbin and Amy Coney Barrett, the Notre Dame Law School professor whose nomination hearing for a seat on the U.S. Court of Appeals for the Seventh Circuit occurred yesterday before the Senate Judiciary Committee. It was one of several times during the hearing that Democratic senators questioned the nominee’s faith with thinly veiled skepticism.

At the start of the hearing, Barrett asserted, “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.” The nominee repeated herself on this point several times during the hearing, which included questions referencing a 1998 law review article she co-wrote that concluded a Catholic trial judge who was also a conscientious objector to the death penalty should recuse himself when the law required the judge to enter an order of execution.

That is a logical, straightforward observation to draw from the process of judicial recusal long established by federal law, but Democratic senators followed with suggestions that a nominee’s religion speaks to her qualifications to serve. Hawaii Senator Mazie Hirono told the nominee, “Ms. Barrett, I think your article is very plain in your perspective about the role of religion for judges, and particularly with regard to Catholic judges, and of course not all judges are Catholic. So we could go down the path of what you think would be the role of religion,” Hirono continued before changing the subject, “for judges who are not Catholic.”

Senator Durbin asked the nominee to define an “orthodox Catholic” and then pressed her whether she was one—after ignoring her response reiterating that the issue facing a judge “who had a conscientious objection to the death penalty” was one “that could face a judge of any religion or no religion at all.” Barrett’s answer affirming her Catholicism included the specifics Durbin seemed to be seeking: “If you’re asking whether I take my faith seriously and I’m a faithful Catholic, I am, although I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.” Durbin pushed his tangent on religion a step further by commenting on those who question the orthodoxy of Pope Francis and then proceeding with what sounded a lot like the suggestion that an adherent to Church doctrine would not be objective in considering the Supreme Court’s Obergefell decision regarding same-sex marriage.

Also ignoring the nominee’s repeated statements to the contrary, Senator Dianne Feinstein, the Judiciary Committee’s ranking member, followed by lecturing Barrett that “dogma and law are two different things.” She continued, “I think in your case, professor, when you read your speeches, the conclusion one draws is that the 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.”

Speaking of rights that were secured by great sacrifice, did any of these senators give thought to the Constitution’s protection of the free exercise of religion or its prohibition of requiring any religious test as a qualification for public office? On the other side of the aisle, Senator Ben Sasse told Barrett during the hearing, “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.”

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