Why the Gabbard-Hirono Feud Matters for the Federal Courts

There has been much press in the past week over U.S. Representative Tulsi Gabbard’s op-ed in The Hill, which criticized fellow Democrats for having “weaponized religion for their own selfish gain.” Gabbard called out members of the Senate Judiciary Committee for specific questions and statements they had directed to Catholic judicial nominees over the past two years, including Senator Diane Feinstein’s comment to then-Seventh Circuit nominee Amy Coney Barrett that “the dogma lives loudly within you” and the aggressive questioning of district court nominee Brian Buescher by Senators Mazie Hirono and Kamala Harris over his membership in the Knights of Columbus. These statements and questions, Gabbard argued, amounted to religious bigotry against Catholics.

Gabbard’s op-ed did not mention Hirono by name, but everyone understood that her fellow Hawaiian was a primary target. And Hirono wasted little time responding, calling Gabbard’s critique a “misguided opinion on the far-right wing manipulation of these straightforward questions.”

Gabbard has announced a Presidential run, so it is easy enough to see her statement as a strategy to create some national press, and to bolster her bona fides as a relative political moderate. But Gabbard’s statements could amount to something far more than a quick hit in the news cycle, or even an intramural dustup between Aloha State politicians. The President is watching, and that is about to make things more complicated for the courts.

More than any other politician in our lifetime, President Trump loves chaos. He thrives on it, and searches out opportunities to force people to pick sides. Removing the middle ground—even if only in principle—usually creates a win-win condition for the President. Some will join his camp, which he can claim as a victory. Some will continue to oppose him, which provides fodder for the personal attacks that have become his political trademark. Dividing every issue into two disparate camps is his fundamental political strategy.

Here, the two camps are already hardening. Senators Hirono and Harris were widely criticized, even in liberal circles, for their questioning of Mr. Buescher, and many media outlets have editorialized against any sort of “religious test” for judicial nominees. And of course, those editorials are right: the separation of church and state has never barred those with privately held religious views from working in government (indeed, quite the opposite), and many of our greatest judges and politicians were people of faith. The only relevant question is whether they can perform their government jobs neutrally and professionally, in fidelity to the law and the Constitution.

The members of the Senate Judiciary Committee would therefore be wise to back away from these types of questions. My sense is that they will not, for two reasons. First, in the minds of Senators Hirono, Harris, and others, a judicial nominee’s religious beliefs and practices are closely connected to his or her position on abortion rights, which makes the questions entirely fair game. For them, it is no longer enough to simply ask whether a lower court nominee will follow the existing law or whether a Supreme Court nominee accepts Roe v. Wade as settled precedent. Every vestige of connection to the Church must be explored. Second, harsh vetting of President Trump’s nominees is as much a reflection of the President as the nominee. As the 2020 election draws closer, one should only expect the Senate Judiciary Committee to be louder, slower, and more openly dysfunctional—if only for the Democrats to send a message to the President and their base.

But this intransigence is exactly what President Trump wants. If the Senate Judiciary Democrats continue to push the religious issue, it only encourages the President to send forth the most openly religious judicial nominees. Judge Barrett, a proud Catholic, seems a likely nominee for the Supreme Court, not because of her qualifications (although she appears well-qualified), but because her nomination hearing would create exactly the kind of public chaos and dysfunction that the President loves. Indeed, a Barrett nomination would be a clear political win for him under any circumstance. If the Senate confirms her without controversy, he can brag to his base about how many religious conservatives he has put on the Court. If the nomination results in a drawn-out fight—perhaps one even uglier than the Brett Kavanaugh hearings—it would provide a powerful line of attack for the President in the 2020 campaign. Either way, he wins.

And either way, the federal judiciary loses. The growing politicization of the federal judicial nomination process may make good political theater, but it lowers public confidence in the courts, makes individual judges appear impossibly biased before they even take the bench, and delays the desperately needed process of filling judicial vacancies.

By careful constitutional design, the federal courts cannot choose their own members. But those tasked with that responsibility have to do a much better job, and it starts with returning some dignity to the confirmation process.