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The federal judiciary: Devout Catholics need not apply
By John Nowacki
"No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
-- Article VI of the U.S. Constitution
Ever wondered what a religious test would look like in 21st century America? It's not that difficult to imagine.
Suppose an attorney holding statewide political office is nominated for a federal appeals court judgeship. He'll have taken positions on various policy issues -- something unavoidable for someone in his position -- but will have earned a reputation in his state as someone who fairly and objectively applies the law, whether he agrees with it or not. Suppose that on the all-important issue of abortion, he had actually instructed his subordinates to follow Supreme Court precedent when enforcing his state's ban on partial-birth abortion, even though he is unabashedly pro-life. And let's say that he is unabashedly pro-life because he is a devout Roman Catholic.
Oh, yes. Let's also say that his critics in the Senate -- for whom abortion is an issue of paramount interest -- say that nothing disqualifies him from service on the bench more than his "deeply held personal views." As one of them would put it, his beliefs are so well known, so deeply held, that we simply can't believe he'll be objective -- even when he says he knows a judge's responsibility is to follow the law and binding precedent.
In other words, because he personally believes in Catholicism's teachings on abortion, he cannot be trusted.
As amazing as it is, that's precisely what is being insinuated about Alabama Attorney General Bill Pryor, nominated to the U.S. Court of Appeals for the Eleventh Circuit. And that is the point that Democrat after Democrat on the Judiciary Committee argued at his nomination hearing.
Charles Schumer announced that Pryor feels so deeply, so passionately about Roe v. Wade that we can't believe he'll be objective.
Dianne Feinstein told Pryor that while people can stop being advocates when they become judges, he does have very strong views after all.
Ted Kennedy acknowledged that while a number of nominees who take positions he opposes have been confirmed, many of Pryor's positions reflect deeply held views -- on the abortion issue in particular -- that make him just too extreme. One of those other nominees, outspoken and avowedly pro-life legal scholar Michael McConnell, was confirmed by unanimous consent in November.
Patrick Leahy reminded Pryor he'd been criticized because of his personal beliefs and after having heard him point to his record again and again, once more demanded to know how anyone could believe he'd really be fair and impartial.
The Senate does have a responsibility to examine whether a nominee will set his or her personal views aside as a judge. In Pryor's case, the answer is that he clearly will. Many of his colleagues in the state government -- Democrat and Republican, liberal and conservative, black and white -- agree that he's a man who will follow the law without favoring any side. And his record as a popular and respected state Attorney General backs him up 100 percent, on abortion or any other issue raised in the context of his nomination.
As if that weren't enough, his sworn testimony before the committee was that he will strive to be a fair, objective judge who follows the law and binding precedent. Even while affirming his personal pro-life beliefs inspired by his Catholic faith, he reminded the committee that he has a moral obligation based on his faith to uphold his oath of office.
None of that, however, was enough for those Senators who think that anyone who sincerely believes as Pryor does is not fit for this particular office or public trust under the United States. Senator Russ Feingold even went out of his way to fault Mr. and Mrs. Pryor just for deciding to postpone a trip to Disney World with their six and four year-old daughters until after Gay Day, responding incredulously when Pryor said the family had made a personal value judgment.
Whether following Supreme Court precedent on abortion and First Amendment cases, protecting Alabama from huge monetary judgments, fulfilling his oath of office by defending state laws, or promoting racial equality, Pryor has demonstrated his commitment to follow the law and seek the fair administration of justice. That willingness to judge each case according to the law and facts is precisely what most Americans expect from those who serve on the federal bench.
He deserves fair consideration and an up-or-down vote in the Senate, and his personal pro-life views that come from his Catholic faith are no excuse to treat his nomination differently. Those Senators on the Judiciary Committee must remember that we are supposed to have left religious tests behind long ago, and that no American courthouse bears a sign stating that devout Catholics need not apply.
John Nowacki is Director of Legal Policy at the Free Congress Foundation
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