Do we really need a loyalty test for Catholic judges?

Yesterday, I posted a response to an E.J. Dionne column arguing that Senators should ask Judge Roberts about his religious reflections and how they might influence his work on the Supreme Court. Dionne based his case on the fact that religion matters, and increasingly so, in our politics. Because Dionne did not base his argument on anything particular to Roberts’ religion, I did not address the claim that Catholicism poses a unique threat to fair constitutional adjudication that requires its adherents, unique among other believers, to be interrogated along the lines Dionne proposed.
Christopher Hitchens has made that claim, one you probably won’t hear anyone associated with the Democratic party endorse. I lack sufficient knowledge about Catholicism to offer a detailed response. I have read the responses of others who know more than I do about this subject. Professor Bainbridge, for example, offers what seems to be a learned analysis.
Nothing I have read leads me to conclude that we suddenly need to start asking Catholic nominees directly or indirectly to affirm their loyalty to the Constitution, and I remain convinced that this would be a most unwise course. This is true even of the limited questions that Bainbridge proposes Roberts be asked because he is a Catholic: “Do you believe that a judge should recuse himself if his participation in a particular case would constitute formal cooperation with evil?” and “Would you recuse yourself under such circumstances?” Nor am I persuaded that Catholicism is such a uniquely serious belief system that its adherents need to be singled out for a loyalty oath. If we start down this road based on the elegant theories of “relevance” being crafted here, we will need to stay on it for all nominees, relevance theories being easy enough to construct.
But please read what those who have thought more deeply about this have to say.


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