William & Mary Bill of Rights Journal Volume 15 (2006-2007) Issue 1 Article 7 October 2006 Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations Paul Horwitz Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Paul Horwitz, Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations, 15 Wm. & Mary Bill Rts. J. 75 (2006), https://scholarship.law.wm.edu/wmborj/vol15/iss1/7 Copyright c 2006 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj RELIGIOUS TESTS IN THE MIRROR: THE CONSTITUTIONAL LAW AND CONSTITUTIONAL ETIQUETTE OF RELIGION IN JUDICIAL NOMINATIONS Paul Horwitz* INTRODUCTION .................................................. 76 I. THE ROLE OF RELIGION IN RECENT JUDICIAL NOMINATIONS ............ 79 A. Precursors ............................................... 79 B. Recent Precedents: The Bush Administration'sLower Federal Court Nominations ........................................ 83 C. John Roberts: Religion as Disqualification ..................... 86 D. HarrietMiers: Religion as Qualification ....................... 91 E. Samuel Alito: Denouement .................................. 94 11. DOES THE RELIGIOUS TEST CLAUSE LIMIT THE USE OF RELIGION BY SUPPORTERS OR OPPONENTS OF JUDICIAL NOMINEES? OR, THE PAST AND PRESENT OF THE RELIGIOUS TEST CLAUSE .......................... 95 A. Prelude: The "Penumbral" Reading of the Religious Test Clause ... 95 B. Four Central Facets of the History of the Religious Test Clause .... 100 C. The Narrow, but Deep, Religious Test Clause .................. 113 D. Present-DayImplications: Of Roberts, Miers, and Others ........ 125 III. THE CONSTITUTIONAL ETIQUETTE OF RELIGION IN THE CONTEXT OF JUDICIAL NOMINATIONS ....................................... 133 A. Introduction ............................................. 133 B. Transparency ........................................... 136 C. Consistency ............................................. 138 D. N uance ................................................ 139 E. Genuine Respect ......................................... 141 F. Hum ility ................................................ 143 CONCLUSION: RELIGION, DIVISION, AND CONSTITUTIONAL ETIQUETTE ..... 144 * Associate Professor, Southwestern Law School. This Article is based on a talk delivered before the Law and Religion Section of the American Association of Law Schools at its annual conference in Washington, D.C., in January 2006. My sincere thanks to Rick Garnett for inviting me to participate. I have benefitted from the opportunity to present this Article to my colleagues at Southwestern, and wish to thank Chris Cameron, Michael Dorff, Michael Epstein, Bryant Garth, Joerg Knipprath, Myrna Raeder, and K.C. Sheehan for their comments on that occasion. Thanks also to Andrew Eveleth for inviting me to present this Article to the Federalist Society chapter at the Pepperdine University School of Law, to Robert Cochran, Doug Kmiec, and Mark Scarberry for their questions, and especially to Joel Nichols for serving as respondent in that discussion. I appreciate the comments offered on a written draft of the Article by Marc DeGirolami, Mike Dorff, Kent Greenawalt, Kelly Horwitz, Ronald Kerridge, and Steve Smith. Thanks also to Andrew Holmes-Swanson for dogged research assistance. WILLIAM & MARY BILL OF RIGHTS JOURNAL (Vol. 15:75 It is interesting how a different nominee changes the standards around this town. -Senator Richard Durbin' INTRODUCTION The Religious Test Clause of the United States Constitution is simple enough. It provides, briefly and with seeming clarity and finality, that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."2 And it has generally been assumed that the simplicity of the Religious Test Clause is matched by its unimportance. Although it is the only place in the main text of the Constitution that mentions religion, it is generally ignored.3 Indeed, it is an almost obligatory move, for those few scholars who have chosen to delve into the history and meaning of this constitutional provision, to cite Laurence Tribe's magisterial treatise on constitutional law, which finds room in its overflowing pages for precisely one footnote on the Religious Test Clause.4 To add insult to injury, that footnote says little 5 more than that the Clause has "little independent significance., We might thus fairly conclude that the Religious Test Clause belongs in the cate- gory of forgotten or irrelevant constitutional clauses, doomed to desuetude by history The Situation Room: HarrietMiers Nomination (CNN television broadcast Oct. 5, 2005) (remarks of Sen. Richard Durbin) (transcript available at http://transcripts.cnn.com TRANSCRIPTS/0510/05/sitroom.02.html). 2 U.S. CONST. art. VI, cl. 3. See, e.g., Gerard V. Bradley, The No Religious Test Clause and the Constitution of Reli- gious Liberty: A Machine That Has Gone of Itself, 37 CASE W. RES. L. REV. 674,677 (1986-87) ("Neither court nor commentator has shown any interest in [the Religious Test Clause] as a clue to the Constitution's 'philosophy' of religion."). There are some notable exceptions to the relative lack of scholarly interest in the Clause. See ALBERT J. MENENDEZ, NO RELIGIOUS TEST: THE STORY OF OUR CONSTITUTION'S FORGOTTEN ARTICLE (1987); Bradley, supra; Daniel L. Dreisbach, The Constitution'sForgotten Religion Clause:Reflections on the Article VI Religious Test Ban, 38 J. CHURCH & ST. 261 (1996); J. Gregory Sidak, True God of the Next Justice, 18 CONST. COMMENT. 9 (2001); James E. Wood, Jr., Editorial, "No Religious Test Shall Ever Be Required": Reflections on the Bicentennial of the U.S. Constitution, 29 J. CHURCH & ST. 199 (1987); Winston E. Calvert, Note, JudicialSelection and the Religious Test Clause, 82 WASH. U. L.Q. 1129 (2004). 4 See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-2, at 1155 n. 1 (2d ed. 1988). ' Id. For the obligatory cites to the Tribe footnote, see Bradley, supra note 3, at 678 n.19; Dreisbach, supra note 3, at 262 n.4 (both citing the first edition of Tribe's treatise). Interestingly, in the very act of foreswearing further work on the third edition of his treatise, Professor Tribe has suggested that there might be more questions left in the Religious Test Clause than his much-cited footnote suggests. See Laurence H. Tribe, The Treatise Power, 8 GREEN BAG 2D 291,303 (2005). As this Article will make clear, however, I am not sure I can agree with his statement that the Religious Test Clause indicates that the Constitution "priori- tizes the secular over the religious in the public realm." Id. 2006] RELIGIOUS TESTS IN THE MIRROR and practice and, as Tribe notes, by the ever-expanding jurisdiction of the Religion Clauses of the First Amendment. 6 That conclusion is quickly belied, however, by even the briefest look at our public dialogue. Since 2003, the phrase "religious test" has appeared some 931 times in general news sources such as newspapers and magazines.7 A Google search for the same phrase turns up 235,000 hits. It would seem that the Religious Test Clause is busting out all over. The reason, of course, is our recent history of judicial nominations. The Religious Test Clause has become a major part of the discussion of judicial nominees in the past few years. The Clause was first invoked in the context of a series of lower federal court nominations, such as that of William Pryor to the Eleventh Circuit, and later in the context of two nominations to the United States Supreme Court that occurred in 2005. In a sense, these latter nominations 9 the successful nomination of John Roberts as Chief Justice of the United States, and the abortive nomination of Harriet Miers as an Associate Justice on the Supreme Court-present mirror images of each other, with religion playing an apparent role as both a qualifying and a disqualifying feature in those nominations. Taken in combination, these nominations have given rise to loud debate over whether, when, and how religion may enter the subject of federal judicial nominations and confirmations. Thus, this is a good time to re-examine the Religious Test Clause: to ask hard questions about its meaning and scope, and about its applicability to recent judicial nominations. More broadly, it is a good time to talk about the use, and perhaps the abuse, of religion in the public discourse that surrounds judicial nominations and con- firnations. Broader still, this discussion may shed light on the appropriate role of rel- igion in political discourse, whether by public officials or by private citizens.' ° 6 TRIBE, supra note 4, at 1155 n.1. 7 This number is yielded by a search for "religious test," performed on March 21, 2006, in the LEXIS "News, All (English, Full Text)" database. I have not accounted for duplication of stories or other possible influences on the number. ' Again, I have not accounted for duplications or other distortions of this number. More- over, in tallying search scores on Google, we must keep a sense of perspective: a search for, say, "Anna Nicole Smith" comes up with some 3.1 million hits. Still, in a database in which "commerce clause" yields only 1.2 million hits, the number of hits for the phrase "religious test" is surely significant. 9 The