Religious Test for the Supreme Court

[evensaul]

Should there be a religious test for the Supreme Court?

When judge Amy Coney Barrett, a devout Catholic and mother of seven, was nominated to the 7th Circuit Court of Appeals in 2017, Senator Diane Feinstein said during the confirmation hearing "“When you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for for years in this country." This came some time after a point in the hearing when Barrett said “It is never appropriate for a judge to apply their personal convictions whether it derives from faith or personal conviction.”

Should there be a (non)religious test for the nomination and confirmation of judges, especially for the Supreme Court?

Judge Barrett is said to be on the very short list of judges being considered by President Trump for Justice Kennedy's replacement on the high court.

My position is that religion or the lack of it should not be a factor in deciding whether to confirm the nominee.

[futureboy]

I totally agree with you, and would say that a candidate's religious views, or lack thereof, should not be a factor when considering their applicability for any government position.

Though, since you did ask about testing nominees, it did get me thinking that there might be a place for some kind of test to ensure that the nominee would not be influenced by their religious (or not) views while performing the duties of their office. I guess the test would really be to ensure that they are able to perform the duties completely impartially with respect to the constitution, and so wouldn't necessarily be geared towards testing for (non-)religious biases, but for any biases.

I know that it's kinda part of many office's oaths when being sworn in, but that's not really an assurance, is it?

Of course, I have no idea what form that test would take or how it would be administered, I'm just saying that I think there could be room for something to check for biases, which would obviously include those related to religion.
I know that there are some pretty involved and comprehensive tests - even just written ones - that purport to be able to accurately evaluate/analyze a person to a granular level over many different metrics.

[Sigfried]

So long as the candidate doesn't put their religious views ahead of their duty as a judge, then there should be no religious test. (Indeed it would be strictly unconstitutional to have such a test.)

There have been a few judges who have put their religion over their duty from time to time, but it's pretty rare.

[evensaul]

So long as the candidate doesn't put their religious views ahead of their duty as a judge, then there should be no religious test.

What if Senators suspect a nominee will do so, but have no proof - is that legitimate reason to vote against confirmation?

[Sigfried]

What if Senators suspect a nominee will do so, but have no proof - is that legitimate reason to vote against confirmation?

Well, an individual is going to vote their conscience (or at least they should). If they are convinced for some reason that a person cannot be a competent judge, they should not vote for them. I have a hard time seing how they would think that without some pretty compelling evidence of some kind.

Legitimate is a bit of a hard word to parse in this context. I can't read their mind and see if they have genuine concerns or simply are voting based on partisanship or ideological grounds. I can only say whether I think they made a well reasoned decision or not based on what I know or have read.

I tend to be of a mind that a well qulified judge should get a pretty easy ride onto the court, but history does have a goodly number of cases where the senate or political winds blocked a nomination.

[Ibelsd]

In answer to, should there be a religious test... NO. Not just no. Hell no! Being in public office does not mean you leave your conscience at the door. However, good judges constrain their rulings to the law. Why are we even having this debate? Could it be that some group of political mouthpieces have openly mused that certain people may be too religious to hold government positions? As Diane Feinstein may put it, the dogma may live too strongly in some people to be public servants. However, and I could be wrong here, but the Constitution specifically says there shall be no religious tests to hold any office. Let me check my handy-dandy pocket Constitution (i.e. the internet)

Article 6
"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Yup, its there alright. It doesn't even mince words. There really can be little interpretation left to the imagination on this one. This isn't a 2nd amendment sort of clause where we are discussing the colonial meaning of "arms". It couldn't be more clear. If you are religious you may hold office. Period. Does not matter if the dogma runs like a river through your golden god-filled lungs while baby angels follow you wherever you go. We don't get to make that a part of your qualifications (or lack thereof).

Again, and I made this point in another thread. It is good that we have liberals who question our constructs and laws. As a society we absolutely need that balance. There should be a question on how we integrate different faiths and values within a, broadly speaking, secular society. And there are and will be conflicts. Abortion is a great example. We have two absolutely incompatible views. So, is the answer to prevent people from holding positions that oppose your view based on some arbitrary measurement of their religiosity? And this could easily work both ways. In fact, it wasn't long ago that being labeled an atheist could disqualify someone from a government position. It was a big deal when JFK won as a Catholic. Just something to think about before we consider offering up religious tests.

By the way, and here is where I get a little ideological myself; nominating judges who are strict texturalists (i..e originalist jurists) seems much better than the alternative if you're looking to have courts call balls and strikes rather than legislating based on whatever their own world views happen to be.

[evensaul]

I totally agree with you, and would say that a candidate's religious views, or lack thereof, should not be a factor when considering their applicability for any government position.

You're against using religious views as a factor in confirmation. Check.

Though, since you did ask about testing nominees, it did get me thinking that there might be a place for some kind of test to ensure that the nominee would not be influenced by their religious (or not) views while performing the duties of their office. I guess the test would really be to ensure that they are able to perform the duties completely impartially with respect to the constitution, and so wouldn't necessarily be geared towards testing for (non-)religious biases, but for any biases.

But you want to make absolutely sure religion won't factor into any judge's decision making, so you're going to apply a hypothetical test to every judge in America. Got it.

And would you do the same religious influence test for every political candidate?

How about a test to screen for political beliefs that are incompatible with American democracy, such as Marxism-Communism? Are you okay with that also?

I know that it's kinda part of many office's oaths when being sworn in, but that's not really an assurance, is it?

No, you want to be absolutely sure.

Of course, I have no idea what form that test would take or how it would be administered, I'm just saying that I think there could be room for something to check for biases, which would obviously include those related to religion.
I know that there are some pretty involved and comprehensive tests - even just written ones - that purport to be able to accurately evaluate/analyze a person to a granular level over many different metrics.

Can you tell me how you're going to make sure the test developers aren't secretly slanting the questions and results? Are you going to test them to be certain? How would you do that?

[evensaul]

bump

[Ibelsd]

So long as the candidate doesn't put their religious views ahead of their duty as a judge, then there should be no religious test. (Indeed it would be strictly unconstitutional to have such a test.)

There have been a few judges who have put their religion over their duty from time to time, but it's pretty rare.

I'll be honest here. I am not sure what this means really. I mean, why specifically call out religious views. How about ideological views or just general philosophies of life? I am also curious how you square this with the progressive view of jurisprudence where a judge should take into account their own personal experiences and consider the moral values being imposed when deciding the law. For instance, Sotomayor, when asked, said she believed here decisions would be better than someone else's because of her experience as a wise, Latina. This struck me as absurd since she implied she would interpret the Constitution based on her personal views rather than the actual written text and historical meaning. I didn't hear progressives complain. So, I would phrase things a bit more neutrally. Obviously, a judge's experiences will have some impact on their decisions. However, it should be a judge's goal to, whenever possible, minimize the impact of their personal views when interpreting the law.

As an aside, one of the most absurd games during the nomination process is the whole game of whether judge X will support Roe v Wade or not and then the different groups go off and talk about that this person is religious or not religious enough or whatever to make their case. The important details, and the only important details is looking at their past decisions and not judging them on the decisions themselves, but on the reasoning. If he's an appeals court judge, maybe he ruled against some abortion rights case (i'm just making stuff up), but the question should be what question was he answering and did he appropriately apply the precedent which is what an appeals court judge is supposed to do. Whether he let religion cloud his view or something else, I don't care. I just want to know if the person is making rational and well-reasoned legal decisions. There should not and must not be a religious test.

[futureboy]

You're against using religious views as a factor in confirmation. Check.

I'm pretty sure my statement was quite clear: I'm against using religious views and a lack of religious views as a factor.
Look! It's right there in the text you quoted: "a candidate's religious views, or lack thereof, should not be a factor"

But you want to make absolutely sure religion won't factor into any judge's decision making

Again, I'm pretty sure my statement was quite clear: I'm against judges' decision-making being influenced by their religious or non-religious views.
Look! It's right there in the text you quoted: "to ensure that the nominee would not be influenced by their religious (or not) views while performing the duties of their office"

And would you do the same religious influence test for every political candidate?

Again, I'm pretty sure my statement was quite clear: The goal would be to test against any biases.
Look! It's right there in the text you quoted: "[not simply] testing for (non-)religious biases, but for any biases"

Now, if you're finished making ridiculous misrepresentations of my statements, would you instead like to try actually responding to them or making your point?

How about a test to screen for political beliefs that are incompatible with American democracy, such as Marxism-Communism? Are you okay with that also?

I'm not sure. Are you proposing such a test? What would be the benefit?

Can you tell me how you're going to make sure the test developers aren't secretly slanting the questions and results?

In what way do you mean slanting the questions and results? To what end?

[evensaul]

It's right there in the text you quoted: "[not simply] testing for (non-)religious biases, but for any biases"

I'm not sure. Are you proposing such a test? What would be the benefit?

Nope, I think it's probably impossible. But you proposed it, so I'm trying to find out if what you're proposing makes any sense at all.

In what way do you mean slanting the questions and results? To what end?

Well, for example, how would you know the test makers aren't secretly right-wingers who arrange to have right-leaning candidates pass the test?

[futureboy]

Nope, I think it's probably impossible.

On what basis do you say that? Are you unaware of the personality/character/psychometric tests which are available and currently in use?

But you proposed it, so I'm trying to find out if what you're proposing makes any sense at all.

I've explained it as best I can. I'm sorry you don't understand it.

Well, for example, how would you know the test makers aren't secretly right-wingers who arrange to have right-leaning candidates pass the test?

I'm not sure it's as simple as pass/fail for comprehensive tests such as what I'm talking about. In any case, from what I understand, something like double-blind testing can be done in order to weed out such issues. They would do the test on random participants in a double-blind scenario to ensure that the test successfully identifies people whose right/left/religious/non-religious/whatever other undesirable biases would affect their ability to perform whatever function is being tested for.

[evensaul]

What makes you think there are enough qualified people without “undesirable biases” to fill all those positions? And do you really think all concerned parties would agree on what biases are undesirable?

[futureboy]

What makes you think there are enough qualified people without “undesirable biases” to fill all those positions?

Perhaps there aren't, in which case the test could simply be used as a metric for determining which people have the least undesirable biases and therefore best fit to serve in office - again, not really a pass/fail situation.

And do you really think all concerned parties would agree on what biases are undesirable?

I don't see an issue with the public or its democratically elected representatives discussing and deciding together which biases are undesirable, or to which degree certain biases should be avoided.

[evensaul]

I don't see an issue with the public or its democratically elected representatives discussing and deciding together which biases are undesirable, or to which degree certain biases should be avoided.

Well, yes, of course. But I'd say the rest of what you propose is just highly wishful thinking.

[futureboy]

Well, yes, of course. But I'd say the rest of what you propose is just highly wishful thinking.

Ok, but that seems little more than your opinion at this point. Psychometric and personality testing has been proved to be successful.

[evensaul]

Ok, but that seems little more than your opinion at this point. Psychometric and personality testing has been proved to be successful.

It is an opinion based on significant personal experience. What is yours based on? I’ve taken many such tests, and have used them as an employer during recruitment and selection. They can be helpful, but are not a substitute for interviews, role play, background checks, and past performance.

What you probably don’t understand is how easily they can be gamed by a test taker. Any reasonably intelligent person will choose the answer that is best for the job they’re being interviewed for, rather than give honest answers. For example, someone applying for a sales job will select answers that show high tolerance for rejection, and a low tolerance for being doubted. A candidate for the judiciary would simply study up on the kinds of questions aimed at bias and learn how to best answer them. If such tests became critically important, there would be no problem finding a company specializing in psychotest prep. Here’s an example: https://www.psychometricinstitute.com.au

And you will never, ever, get all political sides to agree on what constitutes unacceptable bias. It is just a pie in the sky expectation.

[futureboy]

It is an opinion based on significant personal experience. What is yours based on? I’ve taken many such tests, and have used them as an employer during recruitment and selection.

I highly doubt the tests you've used are of the same calibre as what I'm talking about. I'm talking about the kind of tests they'd do for officials in various areas at places like the George C. Marshall Centre in Garmisch-Partenkirchen in Germany. From my experience with people who've taken these tests, they are whole different ball-game.

What you probably don’t understand is how easily they can be gamed by a test taker.

To successfully cheat the kind of tests I'm talking about requires considerable skill and preparation - much more than a regular candidate is capable of or would be motivated. These tests are quite tricky - they can even gauge how truthful the testee is being in the way that some questions are asked repeatedly in completely different ways with different possible answers. Further, additional metrics such as how long certain questions take to answer (assuming the test is completed electronically) provide further data which can be used to flag suspicious answers.

Any reasonably intelligent person will choose the answer that is best for the job they’re being interviewed for, rather than give honest answers.

Again, you're talking about a much lower calibre of tests.

And you will never, ever, get all political sides to agree on what constitutes unacceptable bias. It is just a pie in the sky expectation.

You already agreed that this would be doable:

And do you really think all concerned parties would agree on what biases are undesirable?

I don't see an issue with the public or its democratically elected representatives discussing and deciding together which biases are undesirable, or to which degree certain biases should be avoided.

Well, yes, of course. But I'd say the rest of what you propose is just highly wishful thinking.

Further, I don't know how you'd support that assertion, but in any case, it is irrelevant to whether it should be attempted, or whether there is potential for comprehensive psychometric/personality testing of candidates to public office.

[evensaul]

I highly doubt the tests you've used are of the same calibre as what I'm talking about. I'm talking about the kind of tests they'd do for officials in various areas at places like the George C. Marshall Centre in Garmisch-Partenkirchen in Germany. From my experience with people who've taken these tests, they are whole different ball-game.

Do you have the test names or any other information?

To successfully cheat the kind of tests I'm talking about requires considerable skill and preparation - much more than a regular candidate is capable of or would be motivated. These tests are quite tricky - they can even gauge how truthful the testee is being in the way that some questions are asked repeatedly in completely different ways with different possible answers. Further, additional metrics such as how long certain questions take to answer (assuming the test is completed electronically) provide further data which can be used to flag suspicious answers.

And as I earlier, how will you ensure that your hypothetical tests are not written and scored with hidden biases?

You already agreed that this would be doable:

I agreed that would be the only logical approach. I did not agree it was doable. I think it is impossible.

Further, I don't know how you'd support that assertion, but in any case, it is irrelevant to whether it should be attempted, or whether there is potential for comprehensive psychometric/personality testing of candidates to public office.

Whether something has a chance to succeed is irrelevant to whether it should be attempted? Uh, that's kind of a strange opinion.

[futureboy]

Do you have the test names or any other information?

No, this was quite some time ago, and the folks I heard this from were testees who weren't given much detail about the test and could only report to me what it was like for them taking it. My impression from their reported experience was that there was definitely quite a lot more going on than them just taking a test and then the testers having just their answers to the test questions.

And as I earlier, how will you ensure that your hypothetical tests are not written and scored with hidden biases?

To which I already replied: In any case, from what I understand, something like double-blind testing can be done in order to weed out such issues. They would do the test on random participants in a double-blind scenario to ensure that the test successfully identifies people whose right/left/religious/non-religious/whatever other undesirable biases would affect their ability to perform whatever function is being tested for. I would add that there may already be testing available for this which is developed and maintained by organizations which don't have any biases, but are motivated by creating tests which are successful. Further, even if a test was created with hidden biases, which are not detected before the test is implemented despite the verification process I noted above, it would be immediately suspect the moment a candidate who passed it showed signs of biases when performing their duties in office. The test, and its creation and verification process, could then be carefully checked to show where the issue is and how to resolve it. Let's say that the first time it happens is chalked up to a mistake by the test creation or verification process and minimal checking would be done. The next time it happens (again, despite the verification process) with the advantage for the same undesirable bias would clearly indicate that there is a definite issue and more rigorous checking would be done to weed out the issue. So your claim of the possibility of cheating when making or completing the test would result in, at most, only a few candidates with undesirable biases to reach office with each version of the test which is implemented.

I agreed that would be the only logical approach. I did not agree it was doable. I think it is impossible.

No, you said "of course" in response to a statement that there is no issue with the public or its democratically elected representatives discussing and deciding together which biases are undesirable, or to which degree certain biases should be avoided. And then your next sentence was criticism of "the rest of what [I] propose". This is not a statement that you agree it is "the only logical approach", as you now claim. So you initially agreed that there is no issue with a democratic process being used to decide which biases are undesirable. And now you're saying that it is not possible. In any case, we have countless examples of a democratic approach being used to get agreement between a large group of people, so your new claim that it is impossible is unsupported.

Whether something has a chance to succeed is irrelevant to whether it should be attempted? Uh, that's kind of a strange opinion.

Not really. If we have a goal and there's no support for the claim that it won't succeed and numerous examples of the success of similar endeavours, then there's nothing wrong with attempting to achieve this goal and ignoring claims that it won't succeed.