Letter from President Eisgruber to the Senate Committee on the Judiciary Regarding the Use of Religious Tests

Sept. 25, 2017

September 8, 2017

The Honorable Charles E. Grassley
The United States Senate Committee on the Judiciary
Washington, DC 20510

The Honorable Dianne Feinstein
Ranking Member
The United States Senate Committee on the Judiciary
Washington, DC 20510

Dear Chairman Grassley and Ranking Member Feinstein:

I write, as a university president and a constitutional scholar with expertise on religious freedom and judicial appointments, to express concern about questions addressed to Professor Amy Barrett during her confirmation hearings and to urge that the Committee on the Judiciary refrain from interrogating nominees about the religious or spiritual foundations of their jurisprudential views.

Article VI of the United States Constitution provides explicitly that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”  This bold endorsement of religious freedom was among the original Constitution’s most pathbreaking provisions.  The Supreme Court’s unanimous decision in Torcaso v. Watkins (1961), holding that the First and Fourteenth Amendments render this principle applicable to state offices and that it protects non-believers along with believers of all kinds, is among the greatest landmarks in America’s jurisprudence of religious freedom.  Article VI’s prohibition of religious tests is a critical guarantee of equality and liberty, and it is part of what should make all of us proud to be Americans.

By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state, or local office on the basis of their religious convictions or lack thereof.  Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs.  I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s “no religious test” clause.

I am sympathetic to the challenges that your committee faces as it considers nominees to the federal bench.  In my book The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press, 2007), I argued that your committee need not defer to presidential nominations, and that the Constitution permits senators to probe the judicial philosophies of nominees.  It is, however, possible to probe those philosophies without reference to the religious affiliation or theological views of a nominee, and Article VI insists that the Senate observe that restriction.

The questions asked of Professor Barrett about her Catholic faith appear to have been provoked in part by her co-authored article, “Catholic Judges in Capital Cases” (1998).  I have read that article, and I believe that the views expressed in it are fully consistent with a judge’s obligation to uphold the law and the Constitution.  As a university president committed to free speech, academic freedom, and religious pluralism, I must add that, in my view, Professor Barrett’s qualifications become stronger by virtue of her willingness to write candidly and intelligently about difficult and sensitive ethical questions:  our universities, our judiciary, and our country will be the poorer if the Senate prefers nominees who remain silent on such topics.

I am deeply concerned by the harsh and often unfair criticisms that are now routinely levelled from both sides of the political spectrum against distinguished judicial nominees who would serve this country honorably and well.  On the basis of her accomplishments and scholarly writing, I believe that Professor Barrett is in that category.  She and other nominees ought in any event to be evaluated on the basis of their professional ability and jurisprudential philosophy, not their religion:  every Senator and every American should cherish and safeguard vigorously the freedom guaranteed by the inspiring principle set forth in Article VI of the United States Constitution.

Respectfully submitted,

Christopher L. Eisgruber

cc: Senator Orrin G. Hatch
Senator Patrick Leahy
Senator Lindsey Graham
Senator Dick Durbin
Senator John Cornyn
Senator Sheldon Whitehouse
Senator Michael S. Lee
Senator Amy Klobuchar
Senator Ted Cruz
Senator Al Franken
Senator Ben Sasse
Senator Christopher A. Coons
Senator Jeff Flake
Senator Richard Blumenthal
Senator Mike Crapo
Senator Mazie Hirono
Senator Thom Tillis
Senator John Kennedy