The Corner

Law & the Courts

More Religious Questioning from Senate Democrats

Senator Sheldon Whitehouse, a Democrat from Rhode Island, asked a nominee to a federal district court about his church. Whitehouse begins his first question for the record thus:

You are an elected member (until 2020) of the Falls Church Anglican, which broke away from the Episcopal Church largely due to the denomination’s consecration of an openly gay bishop. The Falls Church Anglican considers “marriage to be a life-long union of husband and wife” intended for “the procreation and nurture of godly children” and entailing “God-given” “roles of father and mother.” In 2015, the associate pastor of the Falls Church Anglican agreed that “if the U.S. Supreme Court decision includes a redefinition of marriage, this will constitute an intrusion of the state on God’s institution of marriage ‘from the beginning’.”

Whitehouse then asks nominee Trevor McFadden seven questions based (loosely) on these facts about his church. Whitehouse asks McFadden whether he agrees with the associate pastor, for example. Several other questions relate to whether McFadden could faithfully apply the Supreme Court’s Obergefell v. Hodges decision, which required governments to recognize a fundamental right to same-sex marriage.

To see what’s wrong with this line of questioning, it might be helpful for liberals to flip this scenario. Imagine that a member of a liberal congregation was up for a judgeship and a senator asked: “I see that your church, the United Church of Christ, has taken a strong stand in favor of same-sex marriage and against religious exemptions from discrimination laws. In a pending Supreme Court case, it says that the First Amendment should not protect a baker who does not wish to make a cake for a same-sex wedding. Your church has also condemned the Supreme Court for protecting religious liberty in the Hobby Lobby case. Can you be trusted to apply the First Amendment and the Religious Freedom Restoration Act fairly?”

Or: “You are a member of the United Methodist Church, a strong supporter of President Obama’s executive action on illegal immigrants who came here as minors. Can you impartially adjudicate claims about the legality of that action?”

Some nominees may have actually said or done something that raises questions about their ability to be impartial judges. Mere membership in a religious organization — even if that organization has views on legal questions, or on moral questions related to legal questions — does not raise any legitimate or reasonable questions about impartiality.

If Roy Moore gets to the Senate and asks nominees questions like my hypothetical ones about religious liberty and immigration, he will deserve condemnation. As Senator Whitehouse deserves it now.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

Most Popular

White House

The Impeachment Clock

Adam Schiff’s impeachment inquiry is incoherent. Given the impossibility of a senatorial conviction, the only strategy is to taint the president with the brand of impeachment and weaken him in the 2020 election. Yet Schiff seems to have no sense that the worm has already turned. Far from tormenting Trump and ... Read More
White House

The Impeachment Clock

Adam Schiff’s impeachment inquiry is incoherent. Given the impossibility of a senatorial conviction, the only strategy is to taint the president with the brand of impeachment and weaken him in the 2020 election. Yet Schiff seems to have no sense that the worm has already turned. Far from tormenting Trump and ... Read More
Elections

Warren’s Wealth Tax Is Unethical

Senator Warren would impose a 2 percent annual tax on wealth above $50 million, and a 6 percent annual tax on wealth above $1 billion. These numbers may seem small, but remember that they would be applied every year. With wealth taxes, small numbers have large effects. Applied to an asset yielding a steady ... Read More
Elections

Warren’s Wealth Tax Is Unethical

Senator Warren would impose a 2 percent annual tax on wealth above $50 million, and a 6 percent annual tax on wealth above $1 billion. These numbers may seem small, but remember that they would be applied every year. With wealth taxes, small numbers have large effects. Applied to an asset yielding a steady ... Read More
Immigration

The ‘Welfare Magnet’ for Immigrants

That term refers to a controversial concept -- and a salient one, given the Trump administration's efforts to make it harder for immigrants to use welfare in the U.S. A new study finds that there's something to it: Immigrants were more likely to come to Denmark when they could get more welfare there. From the ... Read More
Immigration

The ‘Welfare Magnet’ for Immigrants

That term refers to a controversial concept -- and a salient one, given the Trump administration's efforts to make it harder for immigrants to use welfare in the U.S. A new study finds that there's something to it: Immigrants were more likely to come to Denmark when they could get more welfare there. From the ... Read More
Economy & Business

Who Owns FedEx?

You may have seen (or heard on a podcast) that Fred Smith so vehemently objects to the New York Times report contending that FedEx paid nothing in federal taxes that he's challenged New York Times publisher A. G. Sulzberger to a public debate and pointed out that "the New York Times paid zero federal income tax ... Read More
Economy & Business

Who Owns FedEx?

You may have seen (or heard on a podcast) that Fred Smith so vehemently objects to the New York Times report contending that FedEx paid nothing in federal taxes that he's challenged New York Times publisher A. G. Sulzberger to a public debate and pointed out that "the New York Times paid zero federal income tax ... Read More