Abandon litmus test

By Sam Lucero | The Compass | January 9, 2019

Judicial nominee who is Knight of Columbus faces scrutiny

Can a member of the Knights of Columbus be denied appointment to a federal judgeship because of his affiliation with the Catholic men’s fraternal society? That question faced Nebraska attorney Brian Buescher, who was nominated by President Donald Trump in November for a seat on the U.S. District Court for the District of Nebraska.

Buescher was asked about his membership in the Knights of Columbus, and whether he would cancel his membership in the Knights “to avoid any appearance of bias.”

Anyone nominated for Supreme Court justice or federal court judgeship must undergo an interview process by a committee of senators to determine the nominee’s ability to defend the constitution and laws of the land. Each nominee’s public statements and previous court decisions are scrutinized by the Senate Judiciary Committee. Because of its political nature, this nomination process can become contentious, as was the case in the 2018 Supreme Court nomination of Brett Kavanaugh and the failed high court nomination of Merrick Garland in 2016.

During his confirmation hearing Nov. 28, Buescher faced numerous questions related to his views on abortion rights and same-sex marriage, issues that may come before his bench if his nomination is approved.

In response to these questions, Buescher explained that his political positions (he ran unsuccessfully for Nebraska Attorney General in 2014) would not impede him from following court precedent on settled laws such as Roe v. Wade.

“It is the role of the legislative and executive branch to make the law, and it is the judicial branch’s obligation to apply the law, not seek to make law,” he said.

However, in what some might see as overstepping boundaries, two of the Senate Judiciary Committee members questioned Buescher about his membership in the Knights.

California Democratic Sen. Kamala Harris asked Buescher if he was aware — when he joined the Knights in 1998 — that the Knights opposed “a woman’s right to choose” abortion. She also asked if he agreed with Supreme Knight Carl Anderson that abortion “is the killing of the innocent on a massive scale.”

Democratic Sen. Mazie Hirono of Hawaii asked Buescher if he would recuse himself “from all cases in which the Knights of Columbus has taken a position.” She also asked if he would end his membership with the Knights “to avoid any appearance of bias.”

In response to these questions, Buescher explained that the Knights of Columbus “has a religious and charitable purpose.”

“My membership has involved participation in charitable and community events in local Catholic parishes,” he said. “I do not recall if I was aware whether the Knights of Columbus had taken a position on the abortion issue when I joined at the age of 18.”

Following the logic argued by Hirono and Harris, anyone who is Catholic could be denied a judicial appointment because he or she follows church teaching on respect for human life.

Whether opposing abortion and euthanasia or standing up for the sanctity of marriage and the rights of immigrants and refugees, Catholics follow these teachings because they are what the Gospels, based on the word of God, tell us to do.

The Knights of Columbus — or for that matter, the National Council of Catholic Women or the National Catholic Education Association, to name just two groups — follow the teachings of the church and exercise another constitutionally guaranteed right: freedom of religion. To ask a judicial nominee to end his membership with the Knights of Columbus is tantamount to asking him to leave the Catholic Church.

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