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Senators Debate When Nominee’s Religion Is Fair Game

Democrats’ questioning of appeals court pick stirs discussion

California Sen. Dianne Feinstein and Senate Minority Whip Richard J. Durbin, second from left, have stirred controversy over their recent questioning of an appellate nominee. (Al Drago/CQ Roll Call File Photo)
California Sen. Dianne Feinstein and Senate Minority Whip Richard J. Durbin, second from left, have stirred controversy over their recent questioning of an appellate nominee. (Al Drago/CQ Roll Call File Photo)

A Senate Judiciary Committee vote on a controversial appeals court pick Thursday prompted a discussion about when it is appropriate to ask questions about a nominee’s religion — and even a suggestion to hold a public hearing on the issue.

The topic arose because of questions Democratic Sens. Dianne Feinstein of California and Richard J. Durbin of Illinois asked last month during a confirmation hearing for Amy Barrett, a University of Notre Dame law professor and a Roman Catholic who is nominated for the U.S. Court of Appeals for the 7th Circuit.

Feinstein told Barrett during the hearing that one could conclude “the dogma lives loudly within you,” which was a “concern” on issues such as abortion rights. Durbin asked her, “Do you consider yourself an orthodox Catholic?”

Before senators voted Thursday to advance Barrett’s nomination to the Senate floor, Feinstein and Durbin defended their questions as appropriate for exploring how Barrett’s faith might conflict with her actions on the bench, since they said she had no judicial experience for senators to examine. Barrett had previously raised the issue in a 1998 article about how orthodox Catholic judges might act on the bench.

Durbin, a Catholic, said Republicans Charles E. Grassley of Iowa, Orrin G. Hatch of Utah and Ted Cruz of Texas asked questions about Barrett’s faith as well. He said it is “absurd” to suggest he sought to impose a religious test or that a Catholic couldn’t serve on the bench.

“I take our Constitution seriously when it says there should be no religious test for public office,” Durbin said. “But many senators on this committee, Republicans and Democrats, felt the writings of the nominee warranted an inquiry on her views on the impact of religion on a judge’s role. That is not a religious test.”

But Grassley, the panel’s chairman, said he feared “the committee is heading down a dangerous road if we continue to ask nominees questions like this.”

“The Constitution specifically provides that ‘no religious test shall ever be required as a qualification to any office under the United States.’ It’s one of the most important founding principles,” Grassley said. “I don’t think an evaluation of how religious a nominee is — or isn’t —should ever be part of our evaluation.”

Feinstein said she opposed Barrett’s nomination for several reasons, including how she might treat landmark precedents from the Supreme Court that guarantee a woman’s right to have an abortion. When it comes to questions about religion, “I think that has been exaggerated out of any reality,” Feinstein said.

“I myself am a product of Catholic education, I’ve spent more time in a church than I have in a synagogue, and I would be deeply resentful of any comment to the contrary, and I think people who know me know how I feel,” said Feinstein, who is Jewish.

Sen. Ben Sasse, R-Neb., suggested the committee hold a hearing about the issue. After the votes, Durbin said such a hearing had not been held before but agreed it should be.

“I think it is legitimate to talk about the constitutional impact of questions that are asked of nominees,” Durbin said.

Sen. Jeff Flake, a Republican from Arizona, didn’t say anything during Thursday’s committee vote. But Tuesday on the floor, he said that the Senate should examine a nominee’s jurisprudential views and qualifications, and not “examine their relationships with the Almighty.”

“It bears repeating that a Roman Catholic can be a faithful steward of the law. So can an Episcopalian. So can a Mormon. So can a Muslim. Of course, so can an atheist,” said Flake, who is Mormon. “I sincerely hope this body will step back from this dangerous ledge and evaluate Professor Barrett based on her impeccable qualifications, not where she attends church.”

The committee advanced Barrett’s nomination on a party-line vote of 11-9. The nominations of Joan Larsen for the U.S. Court of Appeals for the 6th Circuit and Eric Dreiband to head the Justice Department’s civil rights division were also approved, 11-9.

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