A Constitutional — Not Religious — Test for Federal Judges

By Rev. Dr. Cari Jackson

 

The Senate recently passed a resolution saying it’s unconstitutional to disqualify a candidate for a federal appointment because he belongs to the Knights of Columbus, a Catholic fraternal organization. That’s the latest punch in a brawl in the Senate lasting several weeks about whether it’s appropriate to ask nominees for the federal bench if their personal religious beliefs might make them partial in judging cases.

Some see these questions as a religious test for public service and label it bigotry. At RCRC, we consider this a constitutional test of religious impartiality.

 

The Source of the Controversy

The fracas over this matter emerged from Senate Judiciary Committee hearings for Brian Buescher, nominated for the U.S. District Court for the District of Nebraska.

Sens. Kamala Harris (D-Calif.) and Mazie Hirono (D-Hawaii) asked Buescher whether his deeply held Catholic beliefs would impact his decision-making on the bench. Later Rep. Tulsi Gabbard (D-Hawaii) publicly called these questions religious bigotry.

Religion should not be too hot to handle.

But the core of the matter is this: When deciding on cases, will an individual fairly and independently abide by the Constitution, including the constitutional principle of separation of church and state?

RCRC understands what it means to be guided by deeply felt religious beliefs and teachings which often influence a person’s views. We have outspokenly defended the rights of individuals to make choices based on their religion, or lack of one, without interference from government policies rooted in one religious view.

 

Trump’s Influence

This Trump Administration is advancing a conservative belief system through its policies — limiting access to contraception and abortion care and restricting LGBTQ rights, for instance. This agenda has shaped policy at the Departments of Justice, Health and Human Services and Education, among other agencies. And it appears to have been a key factor in the president’s attempt to mold the federal judiciary long-term.

President Trump has made it clear that he would choose judicial nominees loyal to conservative ideology. Because this ideology includes views consistent with a particular set of religious beliefs, the Senate should closely scrutinize every nominee’s record. Questioning them closely about their judicial philosophy, biases, and influences is appropriate.

That’s precisely what Senators Kamala Harris and Mazie Hirono did. They were doing due diligence to determine Mr. Buescher’s ability to be fair, independent, and faithful to constitutional values. His record, replete with strong statements against reproductive and LGBTQ rights that mirror the teachings of his faith, gave them reason for concern.

 

An Attempt to Bully Senators

Whipping up public sentiment with claims of religious bigotry is a shameless attempt to bully senators into backing off from the tough questions that probe a nominee’s true ability to be impartial.

Religion should not be a topic too hot to handle. Arguing that any line of inquiry that strays into the realm of religion is necessarily a “religious test” is purely a canard.

We are grateful to senators who take seriously their responsibility to fully vet every nominee for a lifetime seat on a federal court where decisions will be made affecting people from a wide range of faiths and some who choose no faith at all. Thank you, Sens. Harris and Hirono, for working to ensure that every judicial nominee passes the constitutional test.

 

Rev. Dr. Cari Jackson is the executive for religious leadership and advocacy at the Religious Coalition for Reproductive Choice.