'No Blow Is Too Low': Anti-Religious Bias Expected In Supreme Court Nomination

| September 25, 2020

As President Trump prepares to announce his nomination for the Supreme Court, Nebraska Sen. Ben Sasse foresees anti-religious attacks in which “no blow is too low.”

Sasse, who serves on the Senate Judiciary Committee, since 2017 has played a sort of religious discrimination watchdog the Washington Examiner reported.

During the contentious confirmation hearing of Amy Coney Barrett, the 7th U.S. Circuit Court of Appeals judge who is Trump’s favored pick for the Supreme Court, Sasse drew attention to criticisms from Senate Democrats, notably Dianne Feinstein, who suggested that Barrett’s Catholic faith was concerning because “the dogma lives loudly within you.”

Sasse, during his questions, asked Barrett about the danger of imposing a “religious test” on judicial appointees.

“If we were to start ignoring this part of the Constitution,” Sasse said of a clause banning religious tests, “what sort of damage would that present to the republic if people with particular religious views were excluded from public life?”

“I think it could cause all kinds of harm, including infringements upon religious freedom,” Barrett replied.

Now that Barrett will likely face the same committee again, Sasse, along with a score of other Republicans in Congress, has risen to her defense, warning that criticism of her Catholic faith, her membership in the charismatic group People of Praise, and her legal views, which are often construed as anti-abortion, are part of a pattern of “bigoted attacks” on religious people.

It’s an alarm bell Sasse has been sounding for several years now, as the Senate becomes increasingly polarized over the president’s judicial nominees.

In the most notable instance, Sasse in 2019 convinced the Senate to rebuke two Democratic members, California Sen. Kamala Harris and Hawaii Sen. Mazie Hirono, for “anti-Catholic attacks” on Brian Buescher, a judicial nominee to a Nebraska appellate court, for his membership in the Catholic fraternal group the Knights of Columbus.

Harris and Hirono, Sasse said, had crossed a line by asking Buescher to disavow the Knights. The two in their written questions to the nominee had asked, if confirmed, if Buescher planned to end his membership with the Knights based on the “extreme” organization’s long-standing opposition to abortion and gay marriage.

Buescher replied that he would not end his membership, that he would not let his personal preference cloud his legal judgment, and that the Knights did not have authority over its members’ opinions.

Buescher was not the only person to receive scrutiny for membership in the organization. Harris in 2018 also pushed another nominee, Peter Phipps, on his affiliation with the Knights, asking if he would carry out the “mission” of the fraternal group to defend life “from the moment of conception to natural death” while in his position.

This, too, earned the opprobrium of Sasse, who at Phipps’s confirmation hearing the next year mocked Senate Democrats for the “new tradition” of imposing religious tests on Catholics.

A third member, Paul Matey, also faced questions from Harris in 2018 about his membership in the organization.

As she did with Buescher and Phipps, Harris asked Matey if he would end his membership with Knights because of its opposition to gay marriage and abortion.

To Harris’s concern that a member could not "fairly" decide in cases involving abortion, Matey replied that his decisions would "be guided not by my associations, but only by the law."

Despite Harris’s concerns, the Republican majority Senate confirmed all three nominees. It also confirmed many other religious nominees, who, although not Catholic, weathered a barrage of questioning for their associations with or memberships in organizations of a conservative religious position.

Allison Jones Rushing, a Baptist, who, like Barrett, is on Trump’s Supreme Court shortlist, stared down in 2018 queries regarding an internship she took at the First Amendment legal nonprofit organization Alliance Defending Freedom.

The group has been involved in several high-profile Supreme Court religious freedom cases since the 2015 landmark gay marriage ruling in Obergefell vs. Hodges, a fact that led Rushing to be questioned about her personal beliefs on gay marriage.

“Would you perform a same-sex wedding if asked to do so?” asked Connecticut Sen. Richard Blumenthal at one point.

Rushing replied that she had no intention to perform any weddings if confirmed since marrying people, gay or otherwise, “is not a duty or requirement for federal judges.”

Trevor McFadden, who is a leader in the socially conservative Falls Church Anglican, faced scrutiny from Rhode Island Sen. Sheldon Whitehouse, who asked whether McFadden would apply the church’s teachings on gay marriage and abortion to his legal thinking.

In response to Whitehouse’s questions, which resembled questions the senator had asked other religious nominees, he said his personal beliefs would not interfere with his application of the law.

As many fear an impending fight over Barrett, who has stated that her faith does not dictate her jurisprudence, Sasse said he doesn’t doubt that Democrats will deploy the same anti-religious tactics they’ve used in the past few years to paint the nominee as an extremist. Singling out Hirono in particular, Sasse told NBC that “Mazie will say something crazy.”

But, Sasse told the Washington Examiner, even though attempts at religious tests are all too common, trying to bar someone from office because of his or her faith is “blatantly unconstitutional.”

“Every single senator should know that this crap is beyond the pale,” he said.

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