GOP: Kid Gloves for Religious Nominees

Note: This article has been revised substantially from its original form and given a new title.

A lengthy article by Manuel Miranda in the Wall Street Journal describes the approach that we can expect the religious right to rely upon to get judges nominated: The religious right is deliberately misinterpreting a clause of the Constitution that is meant to prevent religious persecution. They are doing so in order to shield religious judicial nominees from legitimate questions during the nomination process.

In 2003, Sen. Frist had reminded a thousand pastors at the National Hispanic Prayer Breakfast that the U.S. Constitution contained three religion clauses, not just the First Amendment's well-known two protecting the free exercise of religion and prohibiting a state-sponsored church. Mr. Frist used scriptural reference to an audience that understood. The religious test clause of Article VI [link added], prohibiting inquiry into a nominee's religious views, he said, was the "rock" upon which the "house" of America's thriving religious liberty was founded.

What Frist said about the religious test clause being crucial for religious freedom may have been technically correct, but he was using the clause as a smokescreen. For what? The contention that any line of inquiry that might depend on a nominee's religious views is off limits.

Note how this article puts the religious test clause versus the wording in the Constitution. Presumably, Frist would agree with Miranda.

Miranda The religious test clause of Article VI, prohibit[s] inquiry into a nominee's religious views....

Constitution The ... judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Note that the religious test clause requires officeholders to swear to uphold the Constitution. It also bars officeholders from having to profess a given faith to hold office. Provided an officeholder swears to uphold the Constitution, it makes no difference what faith an officeholder holds. But there's the rub!

I am not writing about abortion here. For the sake of argument, let's assume that abortion is a right. (That is my position, but my point is bigger than just this one issue.)

Finally, there was the abortion litmus test, which came into focus ever more clearly to conservatives as nothing but a surrogate for a constitutionally prohibited religious test as nominee after nominee was probed for personal convictions without regard to his qualifications to serve.

Although the above comes after some instances in which the religious beliefs of nominees look to be the major consideration among their Democratic opponents, it is the kind of reasoning I find noteworthy here. If abortion is a right, can a judge who opposes it to the point that he will not protect (let alone recognize) the right to an abortion, truthfully swear to uphold the Constitution? And if that is so, is it not fair to ask judicial nominees where they stand on that issue?

The refusal to confirm such a judge is not, as Miranda implies, religious persecution. It is simply a recognition that the nominee will not uphold the Constitution.

Whether a judge is fit for office depends entirely on whether he accepts the principle that it is the job of the government to protect individual rights. If it is known that the religion of a judicial nominee has tenets that conflict with certain rights, then questions about how he might rule in certain situations are fair game. The whole purpose of reviewing a nominee is to ensure that he is fit for his job -- upholding the Constitution. If a nominee's religion conflicts with individual rights on some issue, which side will the judge take? Forget all about abortion for the moment. Suppose a Moslem were nominated for the bench. Shouldn't we ask him whether he thinks blasphemy is protected speech?

The religious test clause of Article VI is designed to prevent federal officeholders from being required to profess a certain religion in order to hold office. While it also permits followers of any religion to do so, it also states that they must swear to uphold the Constitution. In other words, if they won't uphold the Constitution, they can't take office. This clause is anything but what Miranda (and Frist, as far as I can tell) implies it is: a way for members of a religion to be appointed to the judiciary when it is clear that they will make rulings with something other than the protection of individual rights in mind.

If the religious right thinks that abortion is not a right, they should argue their case. It is telling that they instead are trying to corrupt our judicial confirmation process. If we avoid asking questions about areas we know a judicial nominee's religious beliefs are contrary to law and might affect his decisions, we will lose yet another safeguard for our freedom.

-- CAV