There Should Be No Religious Tests for Judicial Nominees
Sen. Jeff Flake /
Sen. Jeff Flake, R-Ariz., a member of the Senate Judiciary Committee, spoke Monday on the Senate floor about the case of Amy Coney Barrett, President Donald Trump’s nominee for the 7th U.S. Circuit Court of Appeals. In a hearing, Democrat Sens. Dianne Feinstein of California and Dick Durbin of Illinois, brought up the religious beliefs of Barrett, a Catholic. “The dogma lives loudly within you,” Feinstein told Barrett. “And that’s of concern.” We reprint below Flake’s prepared remarks on the topic.
I rise today to discuss how we allow religious believers to participate in public life.
From the founding of our country, religious believers have played a central role in our government. The Declaration of Independence was signed by a Presbyterian minister, John Witherspoon, and Charles Carroll, the cousin of our country’s first Catholic bishop.
The importance of religious participation was in the air the Founders breathed and the benefits religious believers of all backgrounds contributed to the common good was understood by the Framers of the Constitution. That’s why they made it clear in Article VI of the Constitution that no public officers could be subject to a “religious test.”
This new country wouldn’t be a country for Anglicans or for Congregationalists or for Quakers. It would be a country for all Americans of all faiths, committed to the Constitution and the common good.
Unfortunately, the Religious Test Clause is no longer just the subject of history lessons.
During this Congress there have been a number of cases when my friends in the minority have seemed to ask nominees about their substantive religious beliefs. I find this particularly troublesome because, as a Mormon, I am a member of a faith that, while it is growing rapidly, still counts fewer adherents than many other religions.
It is religious liberty—espoused in constitutional provisions like Article Six and the First Amendment—that has allowed my faith, despite a difficult history, to flourish in the United States.
And it is religious liberty that is threatened when we seem to evaluate the fitness of nominees for high office on religious orthodoxy.
The most recent example of this was the recent Judiciary Committee nomination hearing of professor Amy Coney Barrett of the Notre Dame Law School. During that hearing she was asked repeatedly about her Catholic faith, and faced what bordered on ridicule when she repeatedly stated that she would perform her judicial duties without interference from the doctrines of the Catholic faith.
It was stated by one questioner, “The dogma lives loudly within you and that is a concern.” What does that statement mean, in this context, if not to question professor Barrett’s judicial fitness based on her religious beliefs.
Liberal groups have been relentless in their opposition to professor Barrett, mischaracterizing her record to paint her as some fringe ideologue, waiting to take orders from the pope or others in clergy on how to decide cases. Just last week The New York Times ran a 1,500-word story on where professor Barrett worships.
It turns out that, apart from her parish church, professor Barrett has been part of an ecumenical “charismatic” community. I should note that “charismatic” Christianity is gaining ground among Latinos in the United States and throughout Latin America. It is a vibrant—and very diverse—minority religious tradition.
According to the Times, [professor] Barrett should have disclosed her participation in this charismatic community to the Senate Judiciary Committee. Professor Barrett’s former professor and colleague, professor Cathy Kaveny of Boston College, went so far as to ask, “[Nominees] have to disclose everything from the Elks Club to the alumni associations we belong to—why didn’t she disclose this?”
I’m no law professor, but I can tell her why: Because in the United States of America it doesn’t matter where you worship when you are being considered for a federal office. And that is as it should be.
The Judiciary Committee does not require disclosure of religious affiliation and I trust my colleagues would join me in strenuously objecting if it did.
Mr. President, it’s ironic that a Notre Dame professor is the target of this kind of animus. Notre Dame, of course, has long been at the forefront of fighting prejudice in this country.
Early in its years, Notre Dame helped rid America of the scourge of slavery. Many artists have rendered Notre Dame professor, Father William Corby, giving the Irish Brigade general absolution during the Battle of Gettysburg. The school then faced down the Ku Klux Klan in the 1920s. At a time when a large number of white men in Indiana were members of the Klan, Notre Dame students made it clear that the Klan’s brand of nativist, anti-immigrant, anti-Catholic hate was not welcome in South Bend.
Four decades later, Notre Dame’s president, Father Ted Hesburgh, received a call about a rally at Soldier Field being organized by Dr. Martin Luther King. Hesburgh was told that Mayor Daley and Cardinal Cody had declined invitations to appear at the civil rights rally and the organizers wondered if he would be willing to appear. In response, Hesburgh drove to Chicago, locked hands with Dr. King, and sang “We Shall Overcome.”
Whether it is slavery, nativism, or Jim Crow, Notre Dame has stood up to it and has triumphed.
In that same tradition, I am confident that professor Barrett is up to that task.
What is remarkable is that I need to say this in 2017, it bears repeating: a Roman Catholic can be a faithful steward of the law. So can an Episcopalian, so can a Mormon, so can a Muslim, and so can an atheist.
We in the Senate give the president advice and consent on judicial nominations. We therefore should examine their jurisprudential views and their qualifications. We must not examine their relationships with the Almighty.
I sincerely hope that this body will step back from that dangerous ledge and evaluate professor Barrett based on her impeccable qualifications—not where she attends church.