The Corner

Law & the Courts

Senate Confirms Buescher as District Judge, Despite Democratic Objections to Knights of Columbus Membership

(Carlos Jasso/Reuters)

The Senate voted this afternoon to confirm Brian Buescher to be a U.S. district judge for the district of Nebraska by a 51-40 vote. Every Democratic senator present voted against Buescher, and a handful (including the seven senators running for the 2020 presidential nomination) did not vote.

Buescher’s nomination became a source of controversy earlier this year, when Democratic senators objected to his membership in the Knights of Columbus, a Catholic fraternal organization that conducts charitable work.

During his confirmation hearing and in written questions late last year, Kamala Harris (Calif.) and Mazie Hirono (Hawaii) suggested that Buescher’s Catholic beliefs were a concern because they would lead him to rule against the right to abortion. Both senators insinuated that his membership in the Knights of Columbus might disqualify him entirely from serving as a judge.

Hirono even demanded that Buescher drop his membership in the Knights and recuse himself from any case on which the organization has taken a position. Here’s part of what Hirono wrote in her questions to Buescher late last year:

7. You reported that you have been a member of the Knights of Columbus since 1993. The Knights of Columbus has taken a number of extreme positions. For example, it was reportedly one of the top contributors to California’s Proposition 8 campaign to ban same-sex marriage.

a. If confirmed, do you intend to end your membership with this organization to avoid any appearance of bias?

On the Senate floor this afternoon, Ben Sasse (R., Neb.) called the fight over his confirmation “one of the most baffling displays of constitutional confusion and of prejudice I’ve seen in my time here” and said that today’s vote to confirm the judge reaffirms the principle that people of every faith have a place in public life.

Sasse noted that his “Senate Judiciary colleagues,” referring to Harris and Hirono, seem to believe the Knights of Columbus is “an extremist outfit.” He remarked, too, that the opposition to Buescher on the basis of his Catholic faith is becoming part of a trend among Democratic politicians:

In this weird rebirth of McCarthyism, it seems that Catholics are to replace the Communists. . . . A United States senator, who has taken an oath to uphold and defend the Constitution, asked Brian, a faithful Catholic, to resign his membership in the Knights of Columbus to “avoid the appearance of bias.” The implication in these questions is really straightforward. It is that Brian’s religious beliefs, and his affiliation with this Catholic, religious, fraternal organization, might make him unfit for service.

Let’s put it bluntly: This was plain, unadulterated, anti-Catholic bigotry, and this isn’t a new thing in U.S. history. It’s just a new old thing. Sixty years ago in this body, John F. Kennedy was asked, as he was running for president, some really similar questions. It’s also plainly unconstitutional.

When Harris and Hirono aired their anti-Catholic objections to Buescher several months ago, I suggested that perhaps these Democratic politicians were testing out a strategy that they might deploy against Judge Amy Coney Barrett, currently of the Seventh Circuit, should she be nominated to the Supreme Court. During Barrett’s confirmation hearing in 2017, Democratic senators Dianne Feinstein (Calif.) and Dick Durbin (Ill.) questioned her about whether her Catholic faith would interfere with her ability to be an impartial judge.

The fight over Buescher was an important occasion for Republicans to remind their Democratic colleagues that opposing judges on the basis of their religious beliefs is unconstitutional.

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