38 Pages Posted: 11 Aug 2004
The Constitution provides the political branches broad discretion to test the substantive ideologies of prospective federal judges as qualifications for judicial office. However, the Religious Test Clause limits political branch discretion to establish qualifications by providing that "[n]o religious Test shall ever be required as a Qualification for holding public office." Having no operational consensus regarding the Religious Test Clause's appropriate scope, the political branches have routinely considered judicial candidates' religious qualities without regard for constitutional implications.
For most of the past century, religion influenced the judicial selection process - usually serving as a quiet tool for courting religious voters. With President George W. Bush's public announcement that he would only nominate judges who believe that our rights were derived from God and intense controversy regarding whether Senators unconstitutionally considered judicial candidates' religious affiliations and ideologies, religion's role is no longer quiet. Indeed, these controversies provoked members of both political parties to charge members of the opposite party with unconstitutionally manipulating religion in their judicial selection decisions.
The superficial disjunct between the political branches' broad discretion and the Religious Test Clause's prohibition of religious tests as a qualification for office requires an analysis of the particular qualities of judicial candidates sufficiently religious to be considered beyond political branch scrutiny. I attempt to resolve the constitutional tension by distinguishing between the Religious Test Clause's appropriate prohibitions and the traditional sphere of ideological inquiry. After drawing these distinctions, I concludes that the Religious Test Clause should prohibit denominational and theological tests for judicial office while it should permit ideological inquiry regardless of possible religious motivation.
Keywords: Religious Test Clause, religion, judicial selection, judicial, confirmation, nomination, federal judges, ideology, religion, religious affiliation, denomination
Suggested Citation: Suggested Citation
Calvert, Winston E., Judicial Selection and the Religious Test Clause. Washington University Law Quarterly, Vol. 82, 2004. Available at SSRN: https://ssrn.com/abstract=574401