Bench Memos

Law & the Courts

“The Dogma Lives Loudly Within You” (Part 1)

The Senate Democrats are attacking Christians again.

During Amy Coney Barrett’s confirmation hearing before the Senate Judiciary Committee in September 2017, Senator Dianne Feinstein pointedly told the then-nominee, “the dogma lives loudly with in you, and that’s a concern.”  The “dogma” to which she referred was Barrett’s Catholic faith, and Feinstein’s not-so-subtle suggestion was that an observant Catholic could not also be a fair and impartial judge.

While this is certainly the most notorious instance of a nominee being grilled about his or her Christian faith, it is far from the only one, as Senate Democrats have continually engaged in questioning that test the limits of the Constitution’s Article VI prohibition on “religious tests” for holding government office.

Their latest target is Brian Buescher, a federal district court nominee from Nebraska.  Following Mr. Buescher’s November 2018 nomination hearing, Senators Mazie Hirono and Kamala Harris submitted questions for the record interrogating Buescher about his affiliation with the Knights of Columbus—a fraternal service organization of the Catholic Church that claims two million members worldwide.

The Knights are an arm of the Church and one of the world’s great charities, having made billions of dollars in charitable contributions and given millions of hours of volunteer service. Their mission includes aid to the poor, support for people with physical and developmental disabilities, and assistance to victims of natural disasters.

Mr. Buescher joins a growing list of Trump nominees who have been quizzed about their Christian faith:

  • In November 2018, Senator Feinstein submitted written questions for the record to Paul Matey (Third Circuit) asking about his affiliation with the Knights of Columbus.
  • In October 2018, Senators Feinstein, Leahy, Blumenthal, Whitehouse and Harris submitted written questions for the record to Allison Jones Rushing (Fourth Circuit) asking about her involvement with Alliance Defending Freedom, a Christian nonprofit organization “that advocates for the right of people to freely live out their faith.”
  • In May 2018, Senator Kamala Harris submitted written questions for the record to Peter Phipps (W.D.P.A.) asking about his affiliation with the Knights of Columbus.
  • In March 2018, Senator Feinstein submitted written questions for the record to Michael Scudder (Seventh Circuit) noting his membership in the St. John the Cross Parish and asking about his involvement with the parish’s efforts to establish a residential crisis pregnancy center as cited in a parish bulletin.
  • In June 2017, Senator Whitehouse (D-RI) submitted written questions for the record to Trevor McFadden (D.D.C.) about his personal views on issues of same-sex marriage and abortion in light of his church membership.(My NRO colleague, Ramesh Ponnuru, detailed that line of inquiry here.)

And the church bashing has not been exclusive to the Senate Judiciary Committee: during a nomination hearing before the Senate Budget Committee in 2017, Senator Bernie Sanders accused Russell Vought—a Christian and President Trump’s nominee for Deputy Director of The White House Office of Management and Budget—of being an “Islamaphobic” on account of his religious views.

These inquiries directed to Christians violate the spirit if not the letter of Article VI, which provides that “no religious test shall ever be required as a qualification to any office under the United States.”

The second post in this series will be published tomorrow.

*A prior version of this post erroneously attributed to Senator Whitehouse questions to the record submitted to Peter Phipps.  Those questions were submitted by Senator Harris. 

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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