Seventh Circuit nominee Amy Coney Barrett & Religious Questions

[This article used her hearing -- not this issue specifically --  to criticize the lack of openness about the candidates' views.  The video provided includes a new Republican senator being upset.  One low point is a nominee not wanting to cite an opinion she had problems with since a litigant might later question her ability to apply them.  We can discuss how we got to this point, and it's understandable, but the point is still a problem.

Seriously?  The senator there needs to find something, there must be something, where she actually did criticize an opinion. Or, ask if a critic of Plessy should not have been nominated to the lower courts in the 1930s. Of particular annoyance is that some senator is not going to suddenly change their vote because she criticized some case five years back and cops to it now.  There has to be a bipartisan push for openness or no confirmation.

As basically suggested by Sen. Kennedy there -- no not that one -- we are dealing with humans here.  And, they have opinions and experiences that in some way will influence their judging. This need not be some special "gotcha" though sure everyone won't simply be bland ciphers lacking opposition.  That happens too. And, you can still vote for people you find fault with somewhat. They are human.  A "no" vote in confirmations usually means a special extra concern, not just favoring someone else given your druthers.  They were nominated in part for this and it is perfectly appropriate for senators -- at least up to a point -- ask them about it.  And, yes, both sides' nominees play this game.

This is so even if you think the questioning as to religious beliefs below was done wrongly.  At some point this is a sham. If a senator in the majority, who is going to vote for you, cannot get decent answers here ... ]


ETA: This Daily Caller, yes the source is used advisedly, piece is informative.  Take Sen. Durbin, a Catholic, explaining his position with inclusion of a three minute video (better than some thirty second clip).  The video shows the context of his question to him if she is an "Orthodox" Catholic, which some have been outraged about, as some crude "religious test."  She used the term in the infamous article and it for some reason confused him.  He asks for a definition and then asks if she is one, partially since there is some debate over what "orthodox" means.  

I'm still not really supportive of the question -- it really opens up a can of worms -- but it wasn't some reprehensible moment.  Finally, find it hard to believe her faith really doesn't affect her judging at all.  In some fashion, at least along the edges, these things will influence you. But, overall, her article shows to me an appropriate approach.  We should be honest about this and senators like Whitehouse and Franken being upset at nominees trying to pretend they are in effect blank slates, it's law all the way down (to reference something Kagan said), have a point.  

But, unless there is a very good reason to think a person's religion is going to interfere with their job, a senator should be wary about bringing it up.

Plus: NYT op-ed sympathetic to the questioning.

I'm depressed at the number of conservative judges that will come as a result of Trump, especially at the top.  But, I have seen some of the "Legal Resistance" -- including liberals -- supportive of some of the nominees to the lower courts.  I gather the same would be true if Hillary Clinton won but suffice to say it's possible that the above can be true and also that on the merits the picks in various cases are good to the extent we are stuck with conservatives.  Also, it is best not to rely on false issues.

I think a major concern with Amy Coney Barrett is that -- contra the concern here, which I address in one of the latest comments -- is that. Reading over the now infamous article, didn't find it really problematic. The basic idea is that being Catholic leads one to be against the death penalty, but a Catholic judge should not stretch the law (even if there is room to make it look okay) to avoid applying it as a matter of constitutional law.  At worst, and the article suggests line drawing might be complicated, the judge should sit out if they are unable to do so. This should appeal to liberals, especially if the same principle applies to abortion.

Anyway, it's just one article, so who knows how much weight should be given to such things.  I think it is okay for senators to ask her about it, fleshing out her understanding of constitutional interpretation. As discussed here -- added comments there as well -- a couple Democratic senators might have made something of a botch of it all.  I'm not going to rely on some thirty second clip where Sen. Feinstein said "dogma" or anything, but along with the Sanders thing (which was covered by a link referenced; I'm wary of his stance and it received some push-back, including from some otherwise sympathetic to him generally), it really upset certain religious people.  Should be careful there.

Without trying to watch a few hours of testimony, part of this care should be to understand what is being argued. A confirmation hearing isn't necessarily the best place to clarify, but there is room for understanding and that should ideally be the place (along with behind the scenes questioning and questionnaires/responses to questions in writing)  to put this sort of thing out in the open.  Of course, it is all going to be an imperfect process.  But, at times, it is going to involve religious issues as noted by the professor writing the discussion in the previous link.

By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state, or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s “no religious test” clause.

If so, not asking questions about "religious or spiritual foundations of their jurisprudential views" might be too broad of a test.  The professor there is sure to say that he thinks the nominee is overall commendable even taking into consideration the stance of that article.  But, let's say a person's religious belief holds that you have a right and duty to stretch the law as much as it is reasonably possible if otherwise it would violate natural law?  Is this possibly religious belief truly "irrelevant" to qualifications?  Free exercise rights are not absolute.  Finally, if religion plays an important part in one's worldview here, why not cover it? OTOH, certain questions might have gone too far, including asking her about her faith in a way not closely tied to the requirements of the specific position. 

A more strict view of the Art. VI rule to me is too extreme: the summary here suggests the clause "would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines."  Under that test, Congress could pass a law stating the no Catholics, but as long as nominees did not "under oath" (presume affirmation too) have to swear they were not Catholics to execute the rule, it would be okay.  Along with the First Amendment generally, think things are a bit stronger than that. And, the spirit of the provision warrants special care before one's religious beliefs should matter. Again, in narrow cases, they might.   But, my concern is their overall beliefs on positions as compared to specific religious beliefs. That sort of thing can be misleading too at times.

Overall, I think this discussion has much going for it, putting aside my wariness about certain aspects of a long discussion.  Special care should be taken to questions regarding her faith and when it overlaps with judicial ideology, the senators had a special duty to tread carefully.  They probably didn't in certain instances, but overall, I'm not going to be very upset since on balance they have earned some good faith.  (If I can use that term.)  And, even there, we are only talking about part of extending Q&A.

The nominees repeatedly are going to have religious beliefs some do not like, but we can focus on their non-religious beliefs and qualifications (or lack thereof) when opposing them all the same.  Finally, I'm sure the specific nominee here has judicial ideological beliefs I oppose -- Trump's legal nomination team aren't aiming to pick neutrals.  But, this specific approach is misguided and will make some look bad to those not already convinced.  I would try to avoid such unforced errors.