Readers of First Things will already know of the recent senatorial attacks on judicial nominees for their Catholicism. In the 2017 hearings for circuit-court judge Amy Coney Barrett, Senator Dick Durbin, who is Catholic, asked: “Do you consider yourself an ‘orthodox Catholic’?” And Senator Dianne Feinstein told her: “The dogma lives loudly within you, and that’s of concern.” More recently, in the waning days of 2018, Senators Kamala Harris and Mazie Hirono took Brian Buescher to task for being a member of the Knights of Columbus.
It is worth recalling that such senators speak in an old American tradition. For example, in a series of lectures on Catholicism published in 1914 as Center-Shots at Rome, the Reverend George Rutledge of Columbus warned: “Count the Catholics on the bench and at the head of departments in Ohio—number them one by one.”
In the same year, a New York masonic publication called Political Romanism protested: “the Chief Justice of the United States is a Catholic and therefore is coerced in the exercise of his duties; and Justice McKenna of the United States Supreme Court is also a Roman Catholic. And there are hundreds of Roman Catholic judges in the United States.” On these grounds, the tract worried about “what some of these judges are surely doing each day, and will continue to do as long as our people will submit to the Pope’s laws.”
The participation of judges in Catholic fraternal organizations confirmed his fears. Noting that some of the Massachusetts Supreme Court belonged to the Irish Society, he observed that when “Cardinal O’Connell entered the reception room,” these judges “bowed the knee and kissed the hand.”
During the nativist campaign in 1928 to keep Al Smith out of the White House, Theodore Schroeder warned: “If Gov. Smith should become president, he will have a number of federal judges to appoint.” On this basis, Schroeder stirred up worries about “the appointment of federal judges who will make . . . theocratic interpretation[s]” of the Constitution.
Of course, Kamala Harris and Mazie Hirono probably do not perceive their comments as prejudiced, but that is all the more worrisome. Are they so immersed in old-style nativism that they do not understand what they are doing? Whatever the answer, it is clear that this dismal tradition persists.
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.