“Do you believe [same-sex marriages] are a sin?” he asked. Rao avoided the question by insisting that she would put her personal views to the side when deciding cases. Booker persisted: “So you’re not saying here whether you believe it is sinful for two men to be married?”
This is not the first time we have heard this troubling line of questioning.
In a 2003 hearing, Sen. Charles E. Schumer (D-N.Y.) said of Judge William Pryor, a nominee, that his “beliefs are so well known, so deeply held, that it’s very hard to believe … that they’re not going to deeply influence the way he comes about saying, ‘I will follow the law.’ ” In 2017, Sens. Dianne Feinstein (D-Calif.) and Richard J. Durbin (D-Ill.) engaged in similar colloquies with Amy Coney Barrett, a professor who was nominated for the U.S. Court of Appeals for the 7th Circuit. Barrett is a Catholic who taught at Notre Dame Law School. Her religious convictions are in line with Catholic teaching, and she had made her views known about abortion and capital punishment in writing and speaking before her nomination.
Casting aside respect for Barrett’s religious freedom, Feinstein observed, “When you read your speeches, the conclusion one draws is that dogma lives loudly within you.” Durbin followed up by asking Barrett if she considered herself an “orthodox Catholic.” Feinstein, by referring to “dogma,” undoubtedly meant the authoritative tenets and teachings of the Catholic Church. In these examples, as well as in the exchanges with Rao, senators were seeking to elicit responses or drawing conclusions based on the nominee’s religious views.
Are religious convictions fair game in the confirmation process? Not according to Article VI of the U.S. Constitution. Clause 3 reads as follows: “No religious test shall ever be required as a qualification to any office or public trust under the United States.” According to the limited records of the Constitutional Convention, this provision was approved almost unanimously. As historian Gerard Bradley has pointed out, the banning of religious tests for federal office is somewhat puzzling because it runs contrary to the actual practice in the states at the time of the adoption of the Constitution; many had religious tests for holding office. The same could be said of the First Amendment language prohibiting Congress from making any law “respecting an establishment of religion.” This protection was ratified at the very time when some states had “established” churches — that is, government-supported churches. However, the intention of the Founders in both Article VI and the First Amendment seems to be clear: The new national government would not favor, either by religious tests for office, or by tax support, particular religious denominations. It’s worth noting that in 1961, the Supreme Court in Torcaso v. Watkins extended the prohibition on religious tests to state governments. The court concluded that the states, like the federal government, invade “the freedom of belief and religion” protected by the First and 14th amendments when they impose religious tests for state positions.
That’s not to say the question of how religion might influence judges, broadly, is always off limits. In a 1998 law review article, which she co-wrote as a law student with Notre Dame Law School professor John Garvey (currently president of Catholic University), Barrett herself mused about a possible conflict between a Catholic judge’s allegiance to Catholic teaching opposing capital punishment and existing constitutional case law that supported capital punishment. Like the late Justice Antonin Scalia, Barrett concluded in the article that “judges cannot — nor should they try to — align our legal system with the Church’s moral teaching when the two diverge.” The recognition of that potential conflict apparently concerned certain members of the Judiciary Committee, although the article itself seemed to conclude that a judge in that position might have to consider recusing himself or herself.
But the way the Judiciary Committee has pursued the issue is over the line. Senate Democrats are not focused on the nominees’ general ethical moorings or their moral compasses, nor are they probing nominees’ allegiance to what is honest, true and right as they conduct themselves in office. Instead, these questions and statements are meant to unmask particular tenets of potential judges’ religious faith that the interrogators fear run counter to their own political stances on issues such as abortion and gay rights.
The Constitution authorizes the president to “nominate, and by and with the advice and consent of the Senate” appoint people for service as federal judges and justices on the Supreme Court, as well as other senior positions within the executive branch. The vast majority of these presidential nominees since the founding have not been subjected to the challenges of today’s modern confirmation hearings. Even a hearing for a Supreme Court nominee was a rarity before the 1950s. Sandra Day O’Connor was the first nominee to have a televised confirmation hearing, in 1981. Since then, the TV cameras have afforded ambitious senators plenty of opportunity to grab the spotlight or placate their political base with unfriendly questions.
Still, the Senate’s confirmation authority was designed as a proper check on the executive’s power of appointment. In Federalist No. 76, Alexander Hamilton argued that the Senate’s concurrence in the president’s selections “would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. … It would be an efficacious source of stability in the administration.” The drama of modern confirmation hearings may not be a necessary component of this responsibility, but it is appropriate for the Senate to consider a nominee’s competency and character, or fitness for office, before appointment.
Questions relevant to a broad assessment of moral character are justified: Nominees for federal office ought to be people of good character in addition to being intellectually capable. The trustworthiness of a nominee’s assurances that she will fulfill her responsibilities in accordance with the law rests in large measure on the nominee’s reputation for integrity. However, it should not matter, for the purposes of the committee’s questions, whether the foundation for the nominee’s good character are firm religious convictions, or — by operation of God’s common grace — a commitment to good behavior apart from religious belief.
So where do the inquiries that Democrats have been aiming at Republican judicial nominees fall? Are they proper questions about character and fitness, or do they exceed the boundaries set by Article VI? The questions exceed the limits of Article VI because of what they do and what they don’t do: They don’t tell the Judiciary Committee members anything about a nominee’s integrity, character or suitability for office. They do, however, aim at making a public issue of the nominee’s religious beliefs and how these convictions do not square with the questioner’s own political posture on current divisive issues such as capital punishment, abortion and gay rights. Often questioners persist even after the nominees maintain that they will be guided only by the existing law and the Constitution that they take a solemn oath to uphold.
An insightful Harvard Law Review note on Article VI in 2007 concludes: “The drafters and proponents of the No Religious Test Clause would be astonished to learn that members of the Senate Judiciary Committee have questioned judicial nominees under oath about their religious beliefs and the extent of those beliefs. … Requiring a nominee under oath to profess a religious belief runs afoul of the clause [in Article VI].”
Nominees, presented with these types of questions, should firmly object to them, citing the wisdom of our Founders in adopting Article VI, Clause 3, of the Constitution. At stake is nothing less than the freedom of conscience enshrined in our national charter.