Taking Theology Seriously: The Status of the Religious Beliefs of Judicial Nominees for the Federal Bench

That’s the title of an article I published in 2006 in the Notre Dame Journal of Law, Ethics & Public Policy (vol. 20, pp. 455-471).  Here’s how it begins (notes omitted):

Nominees to the federal bench, like all citizens, have beliefs.  These beliefs include everything from what they were taught in law school to what they know about history or mathematics or what they may have learned in church or synagogue.  And yet, it is the latter beliefs that are singled out for special scrutiny by the United States Senators who have the constitutional duty of advice and consent in the appointment of federal judges.

I believe there are three reasons for this.  First, the issues that are often associated with what have come to be known as the culture wars—abortion, human sexuality, and origins—have been elevated by the federal courts to questions that are implicitly covered by the principles of the U.S. Constitution.  Second, these same questions are addressed by a number of religious traditions that provide contrary answers to the ones given by the federal judiciary.  Third, it seems to me that most of the U.S. Senators who appear concerned about a nominee’s religious beliefs—or what are sometimes called “personal” or “deeply-held beliefs”—do not believe that these religious beliefs could ever be items of real knowledge and thus are not legitimate points of view that fall under the umbrella of what many political philosophers call “public reason.” Hence, what some U.S. Senators fear is that a federal judge or Supreme Court justice confirmed under their watch may employ the deliverances of her theological tradition and provide in her judicial opinions contrary answers to the questions that these senators believe have already been correctly settled by public reason.  Given this conclusion, I will suggest a solution that treats theology with epistemological respect while at the same time allaying some, though I suspect not all, the fears expressed by some U.S. Senators.

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