Sen. Lee: Democrats Questioning Nominees on Religion ‘Flatly Inconsistent’ with Constitution

By Emily Ward | February 13, 2019 | 4:16pm EST
Sen. Mike Lee (R-Utah) (Screenshot)

At a Senate Judiciary Committee hearing, Sen. Mike Lee (R-Utah) rebuked Sen. Mazie Hirono (D-Hawaii) for Senate Democrats’ recent questioning of several judicial nominees, which focused on the nominees’ religious beliefs. Lee said that questioning a nominee about his or her religious beliefs was “flatly inconsistent” with the U.S. Constitution, which prohibits religious tests of those seeking federal office.

“The problem with asking a nominee about the particulars of his or her religious beliefs is that those questions inevitably expose those beliefs as somehow a qualifier or disqualifier for public office,” Sen. Lee said during the February 7, 2019 hearing. “That is flatly inconsistent with at least the letter – at least the spirit, if not also the letter of at least two provisions of the Constitution. I cannot fathom why this would ever make sense to do.”


Lee’s remarks came just two days after Sen. Cory Booker (D-N.J.) asked judicial nominee Neomi Rao, who has been nominated by President Donald Trump to serve on the D.C. Circuit Court of Appeals, whether she believed gay relationships “are a sin.”

Sen. Booker’s remarks were only the most recent in a series of incidents in which Democrat senators have questioned nominees on their personal religious beliefs. In December 2018, Hirono and Sen. Kamala Harris (D-Calif.) pointedly asked judicial nominee Brian Buescher about his membership in the Knights of Columbus, a Catholic service organization. And, in September 2017, Sen. Dianne Feinstein (D-Calif.) said to then-nominee Amy Coney Barrett, “The dogma lives loudly within you, and that’s a concern,” in an apparent reference to Barrett’s Catholic faith.

In an attempt to stop these kinds of religious attacks, the Senate unanimously passed a resolution on Jan. 16 condemning religious tests for those seeking federal office. The resolution cited Article VI of the Constitution, which states in part that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Lee admonished his Senate colleagues, arguing that “there is never a good reason” to ask a nominee about his or her religious beliefs.

“There was a time in this country when people might have been asked, in a job interview context or in the context of a hearing like those we hold here, whether someone believed in God, whether they were Christian,” Lee said. “When they might have been asked those, it was not for – for a good reason, because there is never a good reason, in a public setting, to ask that question, save, perhaps, if you just want to make sure that that person’s religious beliefs do not require that person to betray the judicial oath. Beyond that, I can’t fathom a circumstance in which that would be appropriate.”

Lee then asked Hirono to explain how Booker’s questioning of Rao was “appropriate.”

“I would ask Senator Hirono, in what circumstance, in what way, shape or form, is asking Neomi Rao whether she believes particular conduct to be sinful an appropriate question to be asked in this committee, ever,” Lee said.

Hirono responded, arguing that questions on religious views were a “legitimate area of inquiry.”

“These probing questions – I, I – if you were to list all of the questions that we ask, they have to do with whether or not these nominees’ very strongly-held religious views, as well as any other views that may not enable them to be objective as judges in lifetime positions,” Hirono said. “I think that’s a legitimate area of inquiry. And it is not that we all ask, ‘Do you think such-and-such is a sin, et cetera, et cetera,’ although—”

“Well, that was asked this week – this week!” Lee pointed out. “This week, it was asked. I’m not making this up!”


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