On Wednesday, the Senate Judiciary Committee held hearings for a number of Joe Biden’s nominees, including Hampton Dellinger, whom the president selected to serve as assistant attorney general in the Justice Department’s Office of Legal Policy. An outspoken progressive, Dellinger surely expected Republican senators to grill him about his past political tweets on controversial topics, including abortion. He probably did not expect these senators to ask about his religious beliefs, which the Constitution expressly forbids. But that’s what GOP Sen. John Kennedy did during a startling exchange in which the lawmaker asked Dellinger: “Do you believe in God?”
Kennedy’s question arose in the context of a tweet in which Dellinger asserted that male Republican politicians are the driving force behind abortion restrictions. “If there were no Republican men in elected office,” he tweeted, “there would be no abortion bans.” Kennedy read this tweet aloud, then asked Dellinger: “Do you think that my votes with respect to abortion are based on the fact that I want to control women?” When Dellinger responded that he “cannot speak to that,” the senator responded: “Then why’d you say it in front of God and country?” Dellinger told the senator that, to his mind, the Supreme Court’s decisions protecting reproductive rights “are important.” After further back-and-forth, Kennedy asked the nominee whether he believed in God. When Dellinger told him that “I have faith, I believe,” the senator shot back: “A lot of people have faith. Did it ever occur to you that some people may base their position on abortion on their faith?”
At no point did Kennedy mention the fact that seven ministers sent the Senate a letter in support of Dellinger, who was christened in the Catholic Church. Several of these ministers lead churches in which Dellinger has worshipped. “Throughout his career, Hampton has advocated for just causes and operated with care and concern for his fellow human beings,” the ministers wrote. “He has displayed the kind of compassion, humility, and integrity we should demand for our public servants, affirming the dignity of all fellow citizens in the process.” Nor did Kennedy note that, while serving in the North Carolina attorney general’s office, Dellinger helped to combat a wave of arson against Black churches.
Grilling a nominee about their past tweets is certainly fair game at a Senate confirmation hearing, even if Kennedy spent the better part of four years pretending not to see Donald Trump’s Twitter feed. The obvious problem here is the senator’s demand that Dellinger tell him, under oath, whether he believes in God. In addition to guaranteeing free exercise of religion, the Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Whether or not Kennedy’s question crossed the line as a matter of constitutional law, it certainly qualifies as an impermissible religious test under Republicans’ own standards. When Amy Coney Barrett first came before the Senate Judiciary Committee in 2017, several Democratic senators asked whether her Catholic faith would interfere with her duties as a jurist, and Sen. Dianne Feinstein notoriously quipped that “the dogma lives loudly within you.” Four Republican senators promptly suggested that these questions amounted to an unconstitutional religious test. When Barrett came before the committee again in 2020, Republicans warned that any questions about her faith would violate the Constitution. Several GOP senators, including Kennedy, also alleged that any such question would amount to religious bigotry against Catholics. Sen. Josh Hawley even declared that asking Barrett about Griswold v. Connecticut, the landmark Supreme Court decision establishing a right to contraception, somehow constituted a bigoted attack on her faith.
If a Democratic senator asked Barrett, or any other nominee, whether they believed in God, the GOP outcry would be swift and severe. But a very different standard applies to members of the GOP. Republicans can apparently ask anything they want, including explicit questions about religion. In fact, Kennedy previously asked Brett Kavanaugh if he believed in God—albeit in a very different context, as a softball question preceding his request that Kavanaugh “swear to God.” Democrats, meanwhile, cannot go anywhere near the topic of religion when questioning Republican nominees, lest they be tarred with the brush of bigotry.
Dellinger was not, before Wednesday, a controversial nominee. He has the strong backing of his home state senator, Republican Thom Tillis, who supported him at his hearing. Several other GOP senators, including Chuck Grassley and Lindsey Graham, are poised to vote for Dellinger as well. Kennedy’s ambush seems to have been a last-minute bid to tank his nomination, one that is guaranteed to fail. Do not expect his Republican colleagues to issue angry statements accusing the senator of religious bigotry. To their mind, it appears a religious test only violates the Constitution when a Democrat is asking the questions.