Senator Durbin of Illinois, fresh from slandering American GIs by comparing them to Nazis, introduced a new slander into the public debate after meeting on Friday with President Bush's nominee to the Supreme Court, Judge John Roberts. Mr. Durbin, according to several press reports, asked the nominee to the high court whether he had considered potential conflicts between the moral imperatives of his Roman Catholic faith and his responsibilities as a judge.
Mr. Durbin's press secretary, Joseph Shoemaker, promptly denied that his boss asked such a question. But law professor Jonathan Turley, who reported on the meeting between Mr. Durbin and Judge Roberts in a Los Angeles Times column that appears on the adjacent page, said he heard about the conversation directly from Mr. Durbin - and confirmed the senator's account with Mr. Shoemaker as well. Mr. Durbin has since clammed up.
Based on the senator's performance so far, it's no doubt a wise policy, one that would serve him well all the way through the confirmation hearings, in which Mr. Durbin will participate as a member of the Senate Judiciary Committee. Interrogating a nominee in respect of his religious beliefs is not only grossly inappropriate. It's unconstitutional. In Article 6, the Constitution provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." No, ever, any. It's the most emphatic single sentence in the entire Constitution.
Mr. Durbin and his Democratic colleagues, moreover, have a track record in this regard. Two years ago, they launched a filibuster against Judge William Pryor because of Judge Pryor's "deeply held personal beliefs" regarding abortion. In other words, it was Judge Pryor's Catholicism that disqualified him. Before the confirmation of Attorney General Ashcroft, Senator Reid announced, "I think that we have a right to look at John Ashcroft's religion."
How could the Founders of America have made it any more plain? From Tench Coxe, in his examination of the Constitution ("No religious test is ever to be required of any officer or servant of the United States. The people may employ any wise or good citizen in the execution of the various duties of the government") to William Lancaster of North Carolina ("... we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years, I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it" ) to Luther Martin ("there were some members so unfashionable as to think that a belief of the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that in a Christian country it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism") to Edmund Randolph ("A man of abilities and character, of any sect whatever, may be admitted to any office or public trust under the United States"), the Founders debated the religious test from every angle and then, by an overwhelming margin, excluded it.
Mr. Durbin insisted to reporters last week that he wasn't interested in applying a "litmus test" to judicial nominees. The senator told Judge Roberts, "If you will be honest and forthcoming, you're going to find a warm reception from our side of the aisle, even if we disagree with you on any given issue." But two days later, Mr. Durbin went on NBC's "Meet the Press" to say that if Judge Roberts did not find an implied right to privacy in the Constitution, on which the right to abortion is based, "It would disqualify him in my mind."
Senator Cornyn addressed the issue in his own meeting with Judge Roberts on Monday. "I hate to see somebody going down this road, because it really smacks of a religious test for public service," Mr. Cornyn told the nominee, speaking of Mr. Durbin. "I hate bringing this up, but since someone else already has and I know it is going to come up, is there anything about your faith or religious views that would prevent you from deciding issues like the death penalty or abortion or the like?" Judge Roberts, according to Mr. Cornyn's recollection in a New York Times dispatch, replied, "Absolutely not."
Yet the Democrats persist. "You wouldn't run for the United States Senate or for governor or for anything else without answering people's questions about what you believe," Senator Bayh of Indiana said this week. "And I think the Supreme Court is no different." This attitude is the side effect of using the courts to make laws rather than interpret them. But it will be an even greater debasement of the Constitution to see the judicial nomination process tarred by religious bigotry. Forty-five years after America finally elevated a Catholic to the presidency we will see whether Senators Durbin, Leahy, Schumer, Kerry, and Kennedy recognize that Judge Roberts can't be tested on his "deeply held personal beliefs" in respect of religion.