Do we really need a loyalty test for judges?

E.J. Dionne argues that it’s a good idea for Senators to ask John Roberts to “share his reflections” about “Catholic teaching on public issues” with “the public.” Dionne argues that religion “is playing an important part in our public debates,” making it an appropriate subject for Roberts’ confirmation hearings.
Assuming that religion matters when it comes to determining what some of our policies should be, it doesn’t follow that religion matters when it comes to deciding what the Constitution permits. Perhaps Dionne sees no distinction between policy-making and judging. He is not alone. But what we need to know from a nominee is whether he or she sees the distinction and is willing to abide by it. Only if a nominee rejects the distinction might questions about doctrines that may matter in formulating public policy be relevant.
Catholicism is not the only such doctrine. If religion matters from a policy-making standpoint, then irreligion must have public policy consequences. So must all other religions, and the branch of that religion to which the nominee adheres. Doctrines having nothing to do with religion can also matter a great deal. Feminism comes to mind. Does Dionne really want to turn judicial confirmation hearings into interrogation sessions about the private belief systems of nominees? Or would he limit this treatment to Catholics who believe what the Church teaches?
Assuming that the Senate stops short of an inquisition, a nominee like Roberts would handle religion questions easily (which is why Senator Schumer and company would lean towards an inquisition). The nominee would affirm his or her allegiance to the Constitution and score points when asked, generally, to reflect on religion. But even this low-level inquiry would come at a cost. The drill would be unseemly (making Catholics or atheists or feminists specially declare their “loyalty”), and it would shed no real light. Further mischief would occur in the likely event that Senators, overcome by partisanship and under pressure from special interest groups, pass judgment on the extent to which the nominee’s answers can be believed given the strength of the religious (or other) doctrine in question. Something like this occurred during the confirmation proceedings for William Pryor. One thinks also of the charge against John Kennedy in 1960 that his allegiance as president would be to the Pope.
I hate to invoke the Supreme Court’s Establishment Clause jurisprudence, but politicians should not use confirmation hearings to “entangle” themselves and future judges in religion. There are better ways to find out where a nominee is coming from.


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