Legal Scholars, Religious Leaders Decry 'Litmus Test' for Judges

By Jeff Johnson | July 7, 2008 | 8:04 PM EDT

Capitol Hill ( - A panel of law school deans, religious rights advocates and a former Democratic mayor of Boston convened Tuesday to condemn what they see as a "religious litmus test" being imposed on some of President Bush's judicial nominees by a minority of Senate Democrats.

"Article Six of the U.S. Constitution specifically states that, ' religious test shall ever be required as a qualification to any office or public trust,'" recalled Jay Sekulow, chief counsel of the American Center for Law and Justice, which sponsored the discussion.

"A growing number of Americans are now asking this question: 'If there is, in fact, no religious test, why is it that four of President Bush's judicial nominees are being filibustered?'" Sekulow said.

Those four nominees - Miguel Estrada, Priscilla Owen, Carolyn Kuhl and Bill Pryor - are being kept from a floor vote in the Senate, according to the Democrats who are blocking them, because of the ideology.

"His beliefs are so well known, so deeply held that it's very hard to believe, very hard to believe that they're not going to deeply influence the way he comes about saying, 'I will follow the law,' and that would be true of anybody who had very, very deeply held views," Senate Judiciary Committee member Charles Schumer (D-N.Y.) said of Pryor during his June 11 confirmation hearing.

"It's hard to believe that the incredibly strong ideology of this nominee won't impact how he rules if confirmed." Schumer added.

Dobranski: 'If you're shallow ... that apparently makes you okay'

But Bernard Dobranski, dean of the Ave Maria School of Law, noted an "interesting" irony in Schumer's complaint.

"According to Senator Schumer, it's the fact that they 'seriously hold' these beliefs that gives them concern," Dobranski observed. "If you're shallow or superficial in your grasp and beliefs that apparently makes you okay."

Robert Destro, former U.S. Civil Rights Commissioner and current Dean of the Catholic University School of Law, believes that while, "no senator in his or her right mind today would say openly, 'No Catholics or Jews, Evangelical Protestants or Muslims need apply,' it can all be done by proxy."

"Though the senators have complained loudly that they're not applying religious tests for judges, they are clearly screening out any nominee whose religious beliefs or practices are suspect," Destro explained.

"What they are essentially doing, I think you can say very clearly, is presuming that none of these candidates can actually follow the oath or the [American Bar Association] Canons of Judicial Ethics, which require that people judge impartially," Destro added.

Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee, is Catholic and has vehemently denied charges that the Democrats' opposition to pro-life Catholic nominees such as Bill Pryor is "anti-Catholic."

"Partisan political groups have used religious intolerance and bigotry to raise money and to publish and broadcast dishonest ads that falsely accuse Democratic senators of being anti-Catholic," Leahy said at a July 29 press conference. "I cannot think of anything in my 29 years in the Senate that has angered me or upset me so much as this."

Catholic Democrats accused of 'actively opposing' church's teachings

But Ambassador Ray Flynn, who represented the U.S. to the Vatican during the Clinton administration, argues that even a Catholic lawmaker like Leahy can be guilty of anti-Catholicism.

"It is not so much that they do not like the Catholic faith," Flynn argued, "but rather [that they] choose not to stand for its principles and actively oppose their Catholic Church teachings."

Flynn, who is the former Democratic mayor of Boston and now serves as president of "Your Catholic Voice" a lay organization promoting Catholic citizens' involvement in political and social issues, recalled his childhood in Boston, when he saw "Help Wanted" signs in store widows with the added qualification "Catholics Need Not Apply."

"The 'Catholics Need Not Apply' signs no longer appear in store windows, but unfortunately that mindset still exists among some bigots," Flynn said. "The difference between then and now that Catholics knew they were hated [then, while] today, Catholics falsely think they are loved."

Catholic politicians who oppose the church's teachings against abortion, divorce and homosexuality tout their religion but oppose judicial nominees that subscribe to its tenets, Flynn believes, because they "want to have it both ways."

"They want the Catholic vote, so they pronounce their faith," Flynn said. "But they also don't want to offend the well-organized and well-financed liberal groups."

Nathan Diament, director of public policy for the Union of Orthodox Jewish Congregations of America, said the religious test being imposed by Democrats on the Judiciary Committee becomes readily apparent when examining the list of whose "deeply held personal beliefs" are being questioned.

And those nominees, Diament added, are not just Catholic.

"You might argue that secular humanists or some other people who are really devoted to some kind of ethical or moral system or some kind of philosophical system, maybe we should be worried about whether or not they're going to be able to fulfill their responsibilities. Maybe we should be asking them questions about whether they can follow precedent and fulfill the responsibilities of office, but we don't," Diament said.

"We seem to be only asking this question of nominees to offices who also are religious," Diament argued.

Democrats accused of violating oath of office

Kevin Hasson, president of the Becket Fund for Religious Liberty, noted that the senators who are opposing the president's nominees based on their religious beliefs have all taken an oath of office, in which they swore or affirmed to support the Constitution.

"Why did the framers want people to take the oath of office to become a senator? Because they realized that there's more than one way to violate the Constitution," Hasson said. "You can violate it overtly, in which case some judge will order you to stop, or you can subvert it quietly in a way that a judge might not find evidence to [rule against]."

Hasson believes such subversion is taking place when Democrats oppose pro-life, religiously conservative nominees for their so-called "ideology."

"When senators talk about 'deeply held personal beliefs' as disqualifying, they know and we know what they're talking about," Hasson charged.

"A judge may not be able to find evidence that would pass muster in a court of law that the 'Religious Test' clause is being violated, but they know and we know what they're talking about," Hasson added, "and it violates their oath of office."

Not just the nominees being affected by Democrats' filibuster campaign

Sekulow said the filibuster is even more frustrating to those who believe the nominees are being discriminated against based on their religious beliefs because the outcome of the yet-to-be-held votes is already certain.

"Each of the nominees that are currently being filibustered, if there was an up or down vote today, would be confirmed," Sekulow said. "There is not a requirement in the Constitution for 60 votes for confirmation for a federal judicial office. It is a majority."

Nominees' lives are often placed "on hold" while the confirmation process is underway, but Sekulow said theirs are not the only schedules and plans being adversely affected by the Democrats filibuster strategy.

"This filibuster attempt has, so far, impacted each of the branches of government," Sekulow argued.

"The president's authority to nominate and appoint candidates has been, obviously, significantly impacted because of the filibuster," Sekulow observed. "The Senate's ability to give consent, or to vote yes or no, is being impacted because they are not allowing the vote to take place.

"And, of course, the ultimate problem is, it's the judiciary that suffers because justice delayed becomes justice denied," Sekulow concluded, "and we've got circuit courts where there are overworked court, to say the least, and nominees that basically are being held up for what we think is one reason and one reason only and that is this unconstitutional religious litmus test."

See Related Story:

Democrats 'Reinterpreting the Constitution' on Nominations (Aug. 13, 2003)

E-mail a news tip to Jeff Johnson.

Send a Letter to the Editor about this article.