Again With the Religious Test Question

There were some real gems in the questions and statements of senators at yesterday's Senate Judiciary Committee hearing for Seventh Circuit nominee Amy Coney Barrett. (Full disclosure: I was a visitor at Notre Dame for one semester some 11 years ago. I did not see much of Barrett, but I believe I socialized with her a couple of times.) As usual, they concerned religion and its relationship to judging. I must acknowledge up front that I am cobbling together the quotes from various sources, some of them from distinctly partisan media outlets. I would have preferred to draw them from ostensibly nonpartisan outlets, or obviously ideologically tilted outlets that are still treated as reliable news sources by the intelligentsia, but I did not find any reports in a (cursory) search of those outlets, nor have I found a transcript. In particular, I draw on a story in the Daily Caller, despite my general distaste for that paper. I am interested in the statements, of course, not the sources. I worked with what I could find. (For background purposes, here is a story from The Hill.) If you have links to a transcript or to other reporting on the hearing, you are welcome to provide them in the comments. 

1) Senator Dianne Feinstein questioned Barrett on the 19-year-old article "Catholic Judges in Capital Cases," on which Barrett was listed as a co-author with John Garvey; she assisted Garvey with the article when she was a third-year law student. The focus of the article is, as the title suggests, the death penalty. Feinstein's questions appears to have had more to do with abortion, although I would want to review a full transcript to see whether that is entirely accurate. Speaking about that and other statements by Barrett, Feinstein said in a kind of awkward, Yoda-like fashion, "When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country."   

2) Senator Dick Durbin questioned Garvey (and Barrett's) use of the phrase "orthodox Catholics" in the article. (The phrase, incidentally, is generally used in the article to refer specifically to federal judges.) The report puts it this way: "Senate Minority Whip Dick Durbin of Illinois took issue with Barrett’s use of the term 'orthodox Catholics' as it appears in her article, to the extent that it brands Catholics who do not hold certain positions on capital punishment or abortion as heretical. [para.] 'Do you consider yourself an orthodox Catholic?' Durbin asked." Durbin later offered this explanation for his question. 

Speaking after the hearing, the senator — himself a Catholic — told The Daily Caller News Foundation that Barrett has written at length about the role of faith in public life, which warrants questions about her views.

“I prefaced my remarks by saying that going into a person’s religion is not the right thing to do in every circumstance,” he told TheDCNF. “But she’s been outspoken. As a law school professor at Notre Dame she has taken on the tough challenge of how a person with strong religious beliefs becomes a judge and looks at American law.”

“So I think she has fashioned herself somewhat of an expert and I didn’t feel uncomfortable asking that question,” Durbin added.

As usual, some of Barrett's defenders on and off the Senate raised the Religious Test Clause of Article VI of the Constitution.

As I have written before, I think the best reading of the legal application of that clause is narrow. (In looking at the abstract for this article, I note with shame that I used the strategic "first article" trope. Mea culpa. People do foolish things when they're young.) The paradigm case the clause addresses involves various English test acts that required putative office-holders, among others, to avow or disavow particular religious beliefs, under oath, as a condition of entry into that office. Insofar as such statements under oath were taken seriously as a religious matter, these test acts were particularly significant. For the most part, either that Clause was a success in eliminating this problem, or social and political changes rendered it less important. (It is nice to see that various legal commentators are now taking the oath clauses of the Constitution more seriously, although I'm not sure they're doing an especially good job of it, or that they are doing so non-selectively, or that those who have argued that the oath clauses are judicially enforceable are right.)

For the reasons I've offered in the article linked to above and elsewhere, I don't think it's a viable rule, or one required by the Religious Test Clause, that nominees can't be questioned, or even selected or opposed, based on their religion. To quote from the abstract, "There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee." If, for example, a nominee for head of the EPA has stated a religious belief that the world will come to an end in precisely six years, and opined that the imminence of that event means we should use up all our natural resources now and not bother conserving them for the future, that is certainly a valid subject of questioning, and of opposition. There are more current and potentially controversial possibilities. Some broad-brush critics of Islam have argued that a correct reading of the Koran suggests that the faithful or, to use an apparently problematic term, "orthodox" Muslim may lie to non-Muslims. I will not bother citing either those assertions or the many arguments against them. It is evident in any case that it is not an accurate empirical account of how most Western Muslims generally understand or practice their faith. But if a Muslim nominee had publicly asserted a belief that Muslims can and should lie to non-Muslims in order to advance the faith, including lying for purposes of achieving the political supremacy of Islam in the United States, it is hard to believe that the Test Clause would utterly preclude questioning the nominee about this statement or even voting against him or her. The question might be ignorant and offensive, but not, I believe, unconstitutional.

I offer two or three observations about the latest kerfuffle. I generally do not favor expanding the legal operation of the Religious Test Clause by analogy or by reasoning from some ostensible underlying "principle" behind it. But nothing prevents us from questioning and criticizing questions of the sort asked yesterday, as what we might call a matter of "constitutional etiquette" rather than constitutional law. Both the senatorial statements quoted above are excellent targets of criticism.

Let us give a highly charitable reading to Feinstein's Yoda-like quote and assume that she means "dogma" as a term of art and without any intention of triggering the suspicion and hostility that the word seems to evoke for some unlettered individuals. (If so, it's hard, it seems to me, to square it with Senator Durbin's complaint, but that's a matter for the two of them to argue, I suppose.) I can well understand why Catholics and others might take such language less charitably, and in an age in which so many phrases are accused of being "dog whistles," this statement seems like a strong candidate for the "dog whistle" accusation. But I am generally chary of "dog whistle" accusations, and in any event want to be charitable here.

The question is still unhelpful enough that it ends up being doing more to cast suspicion on Catholic nominees generally than to illuminate anything important about this nominee. What one might reasonably want to know is whether, when, and how often a judicial nominee might consider herself obliged to recuse in cases, for whatever reason. It is possible to ask that question in a way that explicitly mentions religion, but with great care and sensitivity and attention to the various relevant nuances, including an awareness that we are multiple and not single selves, that we negotiate the relationship between our beliefs and the world in a complicated way, and that how even believers in a "dogma" actually carry out their faith in a particular role is equally complicated. But history suggests it's hard to do that well, and that few senators are capable of it. It's also possible to ask the question in a barer, non-religion-specific way, asking the nominee whether she can carry out her duties as a judge and decide cases impartially and leave herself open to different arguments and outcomes, and whether she will recuse in cases where she finds she cannot. It is likely that one will receive a boilerplate assurance from the nominee, although it is conceivable that the nominee will offer a fuller, more serious answer to the question. And one can still disbelieve the answer and vote against that nominee no matter her assurances. But the question itself is probably better asked in a simpler, non-religiously-oriented way, and a reasonable senator should not discount the very real likelihood that the nominee's answer that she will judge fairly and impartially is accurate, whatever the senator thinks is the nominee's "dogma" and its relevance to her performance in office. (I leave to one side the question of what we would consider necessary grounds for recusal in particular cases, and whether, for instance, we should approach with equal suspicion any nominee who has spent years working with deep conviction for a particular side of an important cause. I could imagine cases where the public statements of a pro-choice advocate would be so strong and categorical that one might question the ability of that nominee to judge such cases impartially. I could imagine a reasonable, although not necessarily correct, decision to vote against such a nominee. But I would hate to turn that into a blanket conclusion that anyone who has been an advocate on particular issues is unfit for judicial or other governmental office.)      

Durbin's question was also silly, if not offensive. I actually don't take issue with much that he said after the hearing, although his post-hearing statement was not without its problems. Being the junior co-author of a 20-year-old piece is not much by way of fashioning oneself as "somewhat of an expert." Treating being "outspoken" as a trigger for such questions is not ridiculous, but it has troubling effects, encouraging people to bracket their statements about or witnessing of their faith and treat religions as a private matter, the kind of thing you do on Sunday or at home, preferably in a closet or underground bunker, and ignore or conceal the rest of the time. And while he is not wrong, in my view, that "going into a person's religion is not the right thing to do in every circumstance," it raises questions about when he thinks it is the right or wrong thing to do and whether that approach is fair and consistent or partisan and opportunistic. Still, given what I've said above I am fine, over all, with what he said after the hearing.

The question at the hearing is a different matter. It may be less significant than Feinstein's question, but it is also less related to his actual task, and thus more objectionable. Durbin may take issue personally with some Catholics' insistence that there is such a thing as orthodoxy in the faith, and (although I don't know or have any reason to believe that this is Barrett's view) that it is better to be orthodox than heterodox. But that is a religious concern, not a concern about the fitness for office of a nominee. Pace Senator Sanders, religious believers are allowed to think that some fellow practitioners are heretical or unsound in their beliefs and practices. Other religious believers are allowed to object or take offense to this. But all this has little if anything to do with the reason for the hearing, and almost everything to do with an intra-faith dispute. Asking someone under oath whether they are an "orthodox Catholic," in the context of an objection to a possible religious belief that there are correct answers to certain questions within the faith, is pretty darn close to the core concept of a test oath, even if I think it is better to criticize the question in terms of constitutional etiquette rather than constitutional law.

As a sidebar, I should note that Durbin's question was also, not to put too fine a point on it, kind of dumb and unfair. Footnote 8 of the Garvey/Barrett article--which is about capital punishment, remember--defines "orthodox Catholic" very carefully to mean "simply one who holds as correct the teaching of the church's magisterium about capital punishment." "Above all," the footnote emphasizes, "we do not with to imply that one's orthodoxy (or heterodoxy) with regard to this point of doctrine entails anything about the soundness of one's judgment or religious behavior in other areas." It's not very fair, to say the least, to "take issue" with the use of a phrase that is carefully and explicitly defined precisely to avoid making any judgments about the sincerity or soundness of disagreement among Catholics on various issues of faith and doctrine. Incidentally, given that definition, Durbin could simply have asked Barrett, "Do you believe capital punishment is morally wrong under particular circumstances? And if so, can you judge such cases fairly?"

As a final observation, I make no claims of actual animus against Catholics, or "orthodox Catholics," whether defined correctly in the context of that article or otherwise, on the part of either Feinstein or Durbin. Statements--especially statements by candidates and office-holders--can have various motivations, meanings, readings, and nuances. Where there is some policy basis for asking a question or making a statement, it is especially difficult to draw firm inferences about the sentiment behind the question or statement. Such statements can also be opportunistic: having some plausible grounds, or mistaken grounds that are not intrinsically objectionable given the mistake, but also taking advantage of how the speaker thinks some of the audience might receive it, or at least enjoying a kind of double-effect from the multiple readings of the statement. Feinstein, for instance, could have knowingly used "dogma" correctly and more or less sincerely, and with some reason, while knowing that some voters would understand it differently and more ignorantly or hostilely and that she might derive some political benefit from this reading. I'm talking about politics here, not law, and people are freer in those circumstances to draw inferences as they please. But intelligent and informed people should understand how difficult it is to do so carefully and correctly, and be cautious about doing so. In law, they should be even more aware of these difficulties, and more unwilling to draw inferences about motive or animus based on statements by politicians or office-holders, when those inferences will have a judicially enforceable legal effect. As a general rule, I think we are better off focusing on legal outputs than inputs in such cases.