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Thursday, September 07, 2017

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.       

Posted by Paul Horwitz on September 7, 2017 at 10:28 AM in Paul Horwitz | Permalink


"because a Muslim judge may *not* put her "faith above the law", she should recuse in any capital case where her legal duties would require her to act wrongly."

I think this goes without saying, if we want to prevent Sharia, or any other religious law, from becoming superior over constitutional law.

If we expect a Jew to recuse himself in a case about whether newborns have a substantive due process right not to be circumcised, then surely we would want a Muslim to recuse himself in a case regarding whether criticizing or mocking Islam is protected by the first amendment's free speech clause.

Posted by: Mihigh Milo | Sep 9, 2017 8:32:51 PM

I do try to be charitable, biff.

The quoted language is not simply about who has belief regarding as to who will be "redeemed" but even going merely by that -- “who has expressed such strong Islamaphobic language."

How? Well, the specific attention applies to firing of a Christian. That sort of thing was too 'strong' in his view. And, as a public official, such application of beliefs would have added force than merely thinking she was somehow in violation of proper religious belief or whatever.

I do think Andrew Siegel is correct too in some general sense. Often senators oppose people on ideological grounds, but there is a felt need to find a more "neutral" reason & often it is somewhat a reach.

Posted by: Joe | Sep 9, 2017 7:55:14 PM

The only way I can figure out for that line of reasoning to make any sense is if you reject the principle that people should have sincerely held religious convictions in the first place, or believe that when they have them, they become inherently untrustworthy."

I suppose one could argue that that line of reasoning would appear to make sense if you reject the self evident truth that can be known through both Faith and reason, that a human person can only conceive a human person, and thus every son or daughter of a human person, can only be, in essence, a human person. Certainly in regards to Roe v. Wade, those Supreme Court Judges who rejected this self-evident truth should have recused themselves, including Justice Blackmun, who claimed in Oral Arguments, that the definition of person, is " a naturalized citizen".

Posted by: N.D. | Sep 8, 2017 11:44:54 PM

I honestly think this is a natural consequence of shopping around for excuses because you are afraid to state your real opinion. For some reason, these Senators think it is more appropriate to focus their opposition on some overbaked, tangential concern drawn from an advocacy group's misreading of a law review article than to say flat out "I am not voting for any nominees until you give us back the Supreme Court seat you stole plus four court of appeals slots as interest" or "I am not voting for any nominees of a delusional bigot minority President who might have stolen the election and is facing a serious possibility of impeachment." It is an effort to sound smart and substantive and non-political without doing the work.

Posted by: Andrew Siegel | Sep 8, 2017 10:30:41 PM

Seriously religious people are untrustworthy

Posted by: Jen | Sep 8, 2017 4:19:26 PM

Marty Lederman asks "... I would think that might be *comforting* to the Senators in question. Did they at any point articulate their concerns with greater specificity?"

From having watched the hearing, I would say the answer is "no." For reasons that eluded me at the time and that continue to elude me, the Democratic committee members seemed intent on treating the thesis that a judge should *refrain* from placing himself in a position where his religious convictions would interfere with the legally mandated performance of his duties as evidence that Professor Barrett is likely to allow her religious convictions to interfere with the legally mandated performance of her duties as a judge.

The only way I can figure out for that line of reasoning to make any sense is if you reject the principle that people should have sincerely held religious convictions in the first place, or believe that when they have them, they become inherently untrustworthy. "Since you posit that religious convictions might prevent you or someone like you from doing a thing otherwise required by the law, it must be the case that you will misapply the law when it contravenes something about your religious convictions." The whole issue arose, of course, in the context of looking at the recusal statute, the mechanism that exists in the law to allow a judge to avoid subjecting a decision in a case to his personal religious convictions. So you really have to jump all the way to "seriously religious people are untrustworthy" for any of it to make any sense.

Posted by: Paul | Sep 8, 2017 3:55:21 PM

In regards to the doctrine of stare decisis, if it can be shown that in regards to a particular case that comes before the Supreme Court, that there has been an error in regards to substantive or procedural due process law, it would then not be unconstitutional to rule in favor of the spirit of the law.

Posted by: N.D. | Sep 8, 2017 8:54:21 AM

Joe: I think you are falling into the trap of being too "charitable" to Sanders. While you are accurately describing the background of the nominee's article, Senator Sanders specifically said why he will vote no:

In a statement on Thursday, a spokesman for Sanders said, “In a democratic society, founded on the principle of religious freedom, we can all disagree over issues, but racism and bigotry—condemning an entire group of people because of their faith—cannot be part of any public policy.” The nomination of a candidate like Vought, “who has expressed such strong Islamaphobic language," the statement said, “is simply unacceptable.”
He said he was voting no because of Vought's expressed beliefs about who is redeemed, not because Vought supported a Christian institution's firing of a faculty member who strayed from the party line.

Posted by: biff | Sep 7, 2017 11:51:03 PM

It is easier not to "overanalyze" and say something is "simply reprehensible," but when dealing with the average fairly reasonable senator (of either party), rarely is. The extended discussion seems to suggest it isn't simple here.

As to Sanders not confirming because of one religiously influenced statement (assumed to reflect a belief he still has), to be clear, the specific matter involved firing someone [a Christian] for her beliefs. Not just personal belief on faith but support of firing of someone in the specific situation.

How "inoffensive" was a matter of debate among fellow Christians. Given the public role of the office he was nominated for, Sanders was concerned about the arguably tough line there. Again, as were various Christians.

Of course, given Sanders' politics, he very well might have opposed the person on some other grounds too.

Posted by: Joe | Sep 7, 2017 9:53:00 PM

I think we shouldn't over analyze this episode. The senators' behavior was simply reprehensible, especially after Sanders' line of questioning in a previous, non-judicial, nomination hearing. Recall, he actually said that he will not vote to confirm that guy because the nominee had once written, and presumably still believes, that people who don't share his faith are not redeemed, or some anodyne thing like that.

If this is not a (metaphorical, political) war on religion, it is at least a nice approximation of one.

Posted by: biff | Sep 7, 2017 8:46:20 PM

Although it's been a while since I read it, that's my recollection of the article, too, Rick -- that they advocated recusal in cases where the law and religious obligation conflict (in contrast to Scalia, who, IIRC, concluded he did not have to recuse because he thought the Catholic Church got it wrong, hence no conflict!). I would think that might be *comforting* to the Senators in question. Did they at any point articulate their concerns with greater specificity?

Posted by: Marty Lederman | Sep 7, 2017 3:21:12 PM

Here is the URL for video of the hearing:


(I can't figure out how to create a link -- just copy and paste into your browser.)

Posted by: Suzanna Sherry | Sep 7, 2017 1:56:17 PM

I see Bernie Sanders is referenced in one of the links.


Posted by: Joe | Sep 7, 2017 11:34:56 AM

Paul - I watched the entire hearing. (Video is available at CSpan.) What was perhaps most striking to me was the persistent, seemingly willful misrepresentation of the Barrett & Garvey piece, which quite clearly states that because a Catholic judge may *not* put her "faith above the law", she should recuse in any capital case where her legal duties would require her to act wrongly. This strikes me - pace Sen. Hirono -- as an unremarkable claim, entirely in line with the relevant recusal statute.

Sen. Durbin was, I thought, being snarky re: "orthodox Catholic"; he invoked the fact that he often gets criticized by more conservative Catholics for his votes and noted that some conservatives have criticized Pope Francis and invited Prof. Barrett to share her views about the Pope. She made it very clear that they had used what she admitted was an imperfect term in a stylized, particular way (that is, to identify Catholics who embrace the Church's anti-death-penalty stance), for the article's purposes. Still, he asked her if she was an "orthodox Catholic."

Sen. Feinstein (who, after some nice remarks about Barrett's family, said to her "you are controversial") made her "dogma lives loudly, and that concerns me" remark in her second round, late into the hearing, I think. The first round primarily reflected her (and others') mistaken reading of the Garvey & Barrett article and also Barrett's work on precedent and stare decisis.

I am (FWIW) inclined to agree with you regarding animus, inputs, outputs, and the Test Clause.

Posted by: Rick Garnett | Sep 7, 2017 11:11:34 AM

The questioning clearly offended some people, including Father James Martin, who recently wrote an appealing book on advancing a "bridge" to LGBTQ Catholics. SO, e.g., we have a twenty-five second clip of the "dogma" question with multiple offended replies, including reference to test oaths.

I too would like to see the full transcript and would hope that one is readily available online in the not to distant future. Sen. Bernie Sanders also got in trouble questioning another appointee (not judicial, as I recall) on religious questions. Trying to understand Amy Comey Barett's judicial philosophy is acceptable and think the article put out there very well might put her in a good light. But, senators confusing matters is not surprising.

Anyway, as noted, a test oath ban that blocks a barrier to entry as a set rule does not mean religious beliefs is never a legit factor in appointment and confirmation. I put aside "Jewish seats" or whatnot. I do think it's a touchy matter and some general principle is in place to guard against doing so lightly. One not present for various other reasons.

Posted by: Joe | Sep 7, 2017 11:02:00 AM

Yes, a video is available. For obvious reasons, especially in preparing a post, I was hoping for a transcript. I assume one will be available eventually, at least.

Posted by: Paul Horwitz | Sep 7, 2017 10:56:11 AM

If you go to the Judiciary Committee's site, you can find video of the whole hearing, or at least that's been my past experience.

Posted by: Asher Steinberg | Sep 7, 2017 10:54:24 AM

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