News Tip: Consider Judicial Nominee's Commitment to Law, Not Religious Convictions

The partisan battles in the U.S. Senate this week over judicial nominees, including allegations of anti-Catholic bias, reveal a continued uneasiness over the role of religion in the American legal system, says Duke University law and divinity professor H. Jefferson Powell.

As a constitutional matter, the United States is committed to allowing all people to participate equally in public life without regard to religious views, said Powell, who has served as Principal Deputy Solicitor General in the U.S. Department of Justice and argued cases before the U.S. Supreme Court. Religious commitments, meanwhile, are -- almost by definition -- transcendent in their claims on religious people.

'It would be wrong and ultimately self-defeating for Americans to expect their fellow citizens to put their most fundamental beliefs and loyalties on the shelf when they serve in public office,' he said. 'At the same time, the Senate is clearly entitled to consider the question of whether a judicial nominee is going to perform his office in accordance with the secular norms which govern judges.

'When someone takes the oath of office to become a federal judge, he makes a commitment to act in accordance with those norms, one of which is that a lower-court judge must try in good faith to follow and apply relevant Supreme Court precedent,' Powell said. 'If his religion will not permit him to carry out the judicial office in accordance with those norms, then it would be an act of bad faith to take the oath of office.'

This issue was revisited last week when Democrats on the Senate Judiciary Committee tried to block the nomination of Alabama Attorney General William Pryor to the 11th U.S. Circuit Court of Appeals. While Democrats questioned President Bush's nominee for past anti-abortion statements and opposition to the Supreme Court's Roe v. Wade decision, a newspaper advertising campaign claimed Pryor was being punished by Democrats for his 'deeply held' Catholic beliefs.

The committee went too far, though, when Pryor was asked to state his religious denomination, Powell said.

'It was an error, at best, for any senator to bring up Mr. Pryor's religion,' he said. 'Mr. Pryor's ability, candor, temperament and understanding of the law are fair topics. His theology is not.'

Powell can be reached for additional comment at (919) 613-7098 or by email.