In trying to explain to National Review why she doesn’t apply a religious litmus test to judicial nominees, Sen. Dianne Feinstein in fact revealed that she does indeed have a litmus test. She says, “I have never and will never apply a religious litmus test to nominees — nominees of all religious faiths are capable of setting aside their religious beliefs while on the bench and applying the Constitution, laws and Supreme Court precedents.” But she is worried about an article Prof. Amy Barrett in which she acknowledged that situations might arise in which a Catholic judge’s faith commitments were at odds with what the law declares.
So Feinstein’s litmus test for nominees like Amy Barrett is this: Are your religious beliefs weak enough that you can effortlessly “set them aside”? The same logic was at work when Sen. Dick Durbin denounced Barrett for using the term “orthodox Catholic”: “Do you consider yourself an orthodox Catholic?” he demanded. (“Are you now or have you ever been …”) And again when, a few months ago, Bernie Sanders challenged Russell Vought, President Trump’s nominee for deputy director of the Office of Management and Budget, about his views on soteriology — a branch of doctrine that has no possible bearing on public service.
What all these lines of senatorial questioning have in common is an open revulsion towards people for whom religious belief is consequential. It doesn’t really matter what you think the consequences are, or whether they bear on your job in any way: if you simply think that your religious beliefs matter, that is sufficient to bring you under suspicion.
And again, the form the suspicion takes is that of revulsion, revulsion tending towards outrage. It is hard to tell how much of the revulsion is performative and how much heartfelt, but of course the performative eventually becomes heartfelt. As Bertolt Brecht teaches us, “weeping arises from sorrow, but sorrow also arises from weeping.” And in any case the claim, explicit or implicit, that religion matters is easily perceived as a challenge to those who don’t think it matters, or (more likely) who have never really thought about whether it does, and that is provocative. So look for much more of this kind of response in the years to come.
