The cost of being a faithful citizen

Make no mistake, the faithful citizens of this country will watch the confirmation hearing of Judge Amy Coney Barrett very closely. This should come as no surprise. Over the past few years, a pattern of targeting the private lives of judicial nominees has accelerated, calling into question whether some members of the U.S. Senate are advocating an unconstitutional religious test for public office.

In 2017, during the confirmation hearing of Judge Barrett to the 7th Circuit Court of Appeals, Sens. Dianne Feinstein (D-Calif.) and Richard Durbin (D-Ill.) implied that Judge Barrett’s Catholic faith should weigh against her appointment. Durbin questioned whether Judge Barrett considered herself an “orthodox Catholic,” while Feinstein notoriously said, “The dogma lives loudly within you.” Three subsequent judicial nominees were challenged for their affiliation with the Knights of Columbus, a well-respected Catholic fraternal organization.

This enflamed Catholics nationwide, prompting widespread condemnation across the political spectrum. Fr. James Martin, S.J., retweeted the video clip of Feinstein’s statement, saying it was a “Throwback to an era when Catholics were seen as unthinking tools of the Pope. You can be a good Catholic citizen in our country. Ask JFK.” Religious denominations made it clear that such a religious test for public office is not only unacceptable but unconstitutional, and that if this pattern continues, it will be met with strong opposition. 

Sadly, only a few days after President Trump nominated Judge Barrett to the U.S. Supreme Court, her faith once again has become an issue. Articles immediately began to circulate about Judge Barrett’s Catholic faith as well as her affiliation with a faith-based organization called the People of Praise. The narrative (which is false) about the People of Praise being the inspiration for Margaret Atwood’s fictional novel, “The Handmaid’s Tale,” is but one example of the media’s willingness to distort facts to shift public opinion, even if the reputation of a good person is destroyed in the process. These tactics come at a great cost to our nation and should not be tolerated. 

As bad as such calumny is from the media, it is entirely reprehensible when such attacks are propagated by members of the United States Senate in the confirmation process. Members of Congress take an oath to “defend the Constitution,” including the provision “no religious test shall ever be required as a qualification to any office.” The expected professionalism of the Senate during a judicial confirmation hearing should respect, at all times, the rights of citizens, regardless of religious affiliation. 

All citizens asked to serve in public office deserve, and should expect, a fair hearing, one that explores their professional qualifications to serve, not their religious affiliation. A price this country will pay if an arbitrary religious test is applied for government service is that well-qualified citizens nominated for public office will give pause, or even turn away, when faced with the ramifications to their reputations and the impact on their families, especially if the government they seek to serve fails to protect their constitutional rights in the process. 

The nominees personally bear the weight of these unjust and unconstitutional actions. But the cost to this country is immeasurable in the loss of qualified candidates willing to enter public service. Putting philosophical differences aside, is it truly worth risking judicial candidates like Judge Barrett, who is genuinely well-respected by her peers, who has demonstrated an extraordinary intellectual capacity for the law, and who is certainly qualified to be considered for the Supreme Court, just for the chance to demean her personal, private faith? This is unacceptable and diminishes the dignity of the confirmation process. It was not so long ago, after all, that Ruth Bader Ginsburg was confirmed on a 96-3 vote and Antonin Scalia with 90-0, both receiving bipartisan consent despite differing religions and philosophies on the law. 

At a time when civility in public discourse has reached an all-time low, the Senate has an opportunity to rise above partisan politics, to unite to ensure a fair hearing takes place and to heal the broken process of judicial nominations for the sake of the country. In the case of Judge Barrett, Senate Judiciary Committee members may do so by limiting questions to her professional qualifications and by strongly rebuking any anti-Catholic attacks on her personal faith.

As citizens watch the confirmation hearing of Judge Barrett, they will remember the recent words of House Speaker Nancy Pelosi (D-Calif.), who stated “it doesn’t matter what her faith is or what religion she believes,” and hope the speaker’s message will resonate with the Senate Judiciary Committee. Faithful citizens will be watching.

Joshua McCaig is the founding president of the Catholic Bar Association and a practicing attorney in Kansas City, Missouri.