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Monday, September 23, 2019

Last month, the Jewish Coalition for Religious Liberty penned an op-ed in the Los Angeles Times defending a judicial nominee from attacks rooted in anti-Christian bigotry. The piece warned that if such intolerance was not immediately denounced and repudiated, it would soon target Jews and other religious minorities. As the leaders of this organization, we expected that this prediction would eventually come true. We just did not expect it to occur within the next month—but that is exactly what happened. New Jersey Senator Cory Booker targeted an apparently Jewish judicial nominee, Neomi Rao. The swift and disturbing way that this anti-religious animus has metastasized demonstrates the importance of religious solidarity in opposing every instance of such prejudice.

Let’s begin with what happened a month ago. Senator Mazie Hirono—a Democrat from Hawaii—and Senator Kamala Harris—a Democrat from California—questioned whether Brian Buescher was fit to serve as a district court judge in light of his Christian faith. Buescher is a member of the Knights of Columbus, the world’s largest Catholic fraternal organization. Its members included the likes of President Kennedy, Jeb Bush and even Babe Ruth. And yet, according to Senator Hirono and Harris, membership in the group is evidence of “extreme positions” that may impair someone’s ability to be an impartial judge.

The Senate responded swiftly to this display of bigotry. On January 16, 2019, the Senate passed a resolution condemning the use of religious tests in evaluating judicial nominations as unconstitutional and un-American.

Sadly, two weeks later, Senator Cory Booker decided to engage in exactly this behavior by attacking Neomi Rao, the nominee to fill Judge Kavanaugh’s seat on the D.C. Circuit Court of Appeals. The D.C. Circuit is sometimes unofficially referred to as the second-highest court in America. Rao is an exceptionally qualified nominee for this prestigious court. She clerked for Justice Clarence Thomas at the Supreme Court, served in the White House Counsel’s office for President George W. Bush, and founded the Center for the Study of the Administrative State at George Mason University. The American Bar Association rated her “well qualified,” and the Senate is all but assured to confirm her.

Furthermore, this nomination is a cause for celebration because it involves the promotion of a well-qualified woman, whom the New York Post has reported is Jewish, as well as the child of Indian immigrants. That’s the American dream, and another success story for American Jewry, right?

Not for Cory Booker. He is contributing to the further erosion of the American tradition of accepting religious minorities. Booker, seeing religion as a red flag, expressed concerns regarding how Rao’s faith might interfere with her ability to function as an impartial judge.

Instead of focusing on Rao’s judicial philosophy and her interpretation of the law—the sort of issues that senators should consider when determining whether a nominee has the proper knowledge, philosophy and temperament to serve as an unbiased judge—Senator Booker chose to confront Rao about her apparently Jewish faith.

Booker asked Rao whether she considers gay relationships “a sin.” Rao seemed surprised by this irrelevant and inappropriate question. She patiently explained that her personal religious beliefs are irrelevant to how she would rule as a judge, since she would follow the law and legal precedents regardless. This did not satisfy Booker, who demanded that Rao tell him whether she believes “it is sinful for two men to be married.” In response, she once again explained that, as a judge, she would put her personal views to one side and follow the law. But the senator, apparently playing the role of grand inquisitor, wanted more. Booker proceeded to lecture an apparently Jewish nominee about his personal vision of morality, indicating that he was worried she might reverse legal gains made by gay Americans.

Later on in the hearing, Senator Ted Cruz rightly condemned Booker’s “hostility to religious faith.” He told Rao that the Senate should not act as a “theological court of inquisition.” He asserted that questions about one’s faith “have no business in this committee.” Unfortunately, as Senator Booker’s persistence following the Senate’s recent condemnation of religious tests demonstrates, the actions of other politicians cannot deter this sort of misconduct.

It is incumbent on members of all faiths to stand united in their opposition to religious tests. It does not matter if the nominee is a Muslim—as was the case when a minority within the Tarrant County Texas Republican Party unsuccessfully tried to impeach a local party official because of his faith—or if he is a Christian or Jewish judicial nominee under attack from Democratic senators. Respect for religion is a bedrock American principle enshrined in the Constitution’s ban on religious tests. That principle is still popular among a large and diverse group of Americans. If we uniformly declare that religious tests for government nominees are always inappropriate, we can make sure they are banished to the ash heap of history.

By Rabbi Mitchell Rocklin
and Howard Slugh


Rabbi Mitchell Rocklin is the president of the Jewish Coalition for Religious Liberty and a postdoctoral fellow at Princeton University’s James Madison Program.
Howard Slugh is the general counsel of the Jewish Coalition for Religious Liberty.