GOP Rushes to Confirm Enemy of Church/State Separation to Appellate Court October 18, 2018

GOP Rushes to Confirm Enemy of Church/State Separation to Appellate Court

In news that’s shocking to nobody, Republicans are trying to push judicial nominees through the confirmation process even though Democrats (and several Republicans) on the judiciary committee are home campaigning. Indeed, that’s the reason they’re going through with the hearings at all — might as well jam these six ultra-conservative nominees through en masse before anyone can push back against them.

It’s a travesty, yet it’s also the only way Republicans seem to operate these days. They know many of these nominees would never make it through a fair process, under critical questioning, so they’re trying to work around it by holding hearings without any Democrats around.

One of the nominees four Republicans were around for yesterday was Allison Jones Rushing, who could have a lifetime appointment to the Fourth Circuit Court of Appeals. One of the four senators around to question her, Sen. Orrin Hatch (R-UT), said in his opening remarks to Rushing, “I’m very impressed with you.”

But a number of church/state separation groups are condemning her nomination specifically.

In a letter signed by the Freedom From Religion Foundation, Secular Coalition for America, Center For Inquiry, and American Atheists, the groups call on the Senate Judiciary Committee to reject her nomination for a number of reasons.

Like other civil rights groups, they note her lack of experience, the fact that she doesn’t have the support of the American Bar Association, and her close ties with anti-LGBTQ hate groups. They also mention a handful of arguments that specifically get to the heart of church/state separation.

For example, she’s “demonstrated hostility toward secular Americans.”

While working for conservative group Alliance Defending Freedom, she wrote a law review article called “Nothing To Stand On: ‘Offended Observers’ And The Ten Commandments” that argues such lawsuits should be tossed out because atheists shouldn’t have legal standing merely for being “offended” by those monuments. (Citing offense, however, is really the only way for atheists to challenge those monuments.)

In making her case, she pejoratively refers to church/state separation advocates as “village secularist[s],” “delicate plaintiffs with eggshell sensitivities,” and “weak.” Even if you give her leeway on rhetoric, the gist of her argument is that atheists shouldn’t be allowed to bring forth cases against Christian monuments on government property. In her world, we couldn’t fight back against Nativity scenes outside City Hall or Ten Commandments monuments at State Capitol buildings.

She cannot be trusted to give secularists, the ACLU, or other groups like the ACLU, including all the undersigned, a fair hearing in any Establishment Clause case.

The atheists also say she “reverse-engineers results that privilege religion and violate the Constitution.” That’s because she argues that allowing these cases to go to court allows atheists to subvert the will of the people. What she doesn’t say is that our side wins only if the other side is shown to have acted unconstitutionally. If the majority breaks the law, the minority has the right to challenge it in court.

Unless you live in Rushing’s world, where the Christian majority can push their views on the rest of us.

Rushing also says Christian monuments on government property are merely expressions of speech — and not establishments of religion — nor does she mention any of the myriad cases that show her opinion is clearly not in the mainstream. She has no respect for legal precedent if it contradicts her personal religious beliefs.

Americans United for Separation of Church and State also had other reasons for opposing her confirmation:

During a 2013 panel discussion, Rushing indicated she opposed the ruling in U.S. v. Windsor, the Supreme Court decision that struck down the Defense of Marriage Act (DOMA), which barred the federal government from recognizing the civil marriages of same-sex couples. Rushing praised the dissent by the late Justice Antonin Scalia, who claimed that DOMA “did have a valid basis,” and she criticized the majority for choosing to “write the opinion in a unique way that calls it bigotry to believe that homosexuality does not comport with Judeo-Christian morality.”

With a hostile view of church-state separation, Rushing and other Trump appointees could change the balance of power on the 4th Circuit, which ruled favorably on several religious freedom cases recently. Earlier this year the 4th Circuit ruled in favor of AU and allies against Trump’s Muslim ban. Late last year, the court ruled that a Maryland public school district is not required to fund a student’s religious education. Also last year the 4th Circuit struck down a North Carolina county’s practice of opening its meetings with overwhelmingly Christian prayers.

So this is the person Republicans think would be an ideal judge, and they want to push her through while Democrats aren’t around.

It’s obviously tough to stop the confirmation of right-wing judges when Democrats are in the minority, but these church/state groups are simply urging the Senate to go with a different option. It’s not like there aren’t more people in the Federalist Society’s pipeline, so why not go with someone with more experience and more respect for precedent?

That argument might work if Republicans gave a damn about confirming good judges.

Unfortunately, they don’t. They just want to shove reliably conservative voices through while they have the chance — experience and qualifications be damned. The younger, the better. The GOP would never stop whining if Democrats played a similar game — not that they would — but hypocrisy isn’t something the Right cares about these days either.

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