Nomination of William H. Pryor of Alabama to be United States Circuit Judge for the Eleventh Circuit

Mr. DURBIN. I thank the Senator from Vermont.

Madam President, I rise this morning in continuation of the debate which occurred last night. What has just occurred on the floor of the United States Senate is troubling. An attempt was made by the Senator from Vermont in which I joined to make it clear that no nominee of a President who appears before a committee of the Senate would ever be asked questions related to his or her religious affiliation.

This clear statement of constitutional principle was just rejected by the Republican chairman of the Senate Judiciary Committee. I don't understand that.

If we truly want to take religion out of this debate, if we want the debate to be confined to political beliefs and not a person's creed, why does the Republican chairman of the Senate Judiciary Committee object? I think the answer is obvious.

What we have seen in the William Pryor nomination is an attempt to use religion as a defense. It is almost part of the art of magic. How do you pull off a magic trick? You divert the attention of the audience to something else while you move your hand in another direction. In this case, what the Republicans are trying to do is to divert our attention from the radical political beliefs of William Pryor by saying that the real issue isn't politics; it is his Catholic faith. Frankly, that is not only an unfair argument. It is inaccurate.

Time and again, the Judiciary committee has approved President Bush's nominees for the Federal bench who have been Catholic, who have been pro-life, and, frankly, who have taken positions with which most of the Democratic members of the committee disagree. But in this case, despite the fact that William Pryor has reached a new level as a nominee in terms of his radical views and his experience, we are being accused of discriminating against him because of his religion.

The record will show that it was the Republican chairman of the committee who asked that William Pryor's religious affiliation be made part of the record. It was the chairman of the committee who used that important and now code phrase, "deeply held religious beliefs," on more than one occasion. The record will also show that many of us who have questioned the background of William Pryor never raised his religion as an issue, nor should we.

I have listened to this debate on the floor of the Senate and in the Senate Judiciary Committee, and it troubles me greatly to think this body would now ignore the clear instruction and guidance of the U.S. Constitution, which says, in Article VI, that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

I would warn my colleagues on the other side of the aisle that there is a strong sentiment in America that each of us should have the freedom to follow the religion of our conscience, that no one should ever be dictated to by this Government or any government as to their religious belief. And those who attempt to exploit religion to achieve political goals will, frankly, never be favored in this country, nor should they. That is what is at issue here. And for them to raise this as somehow a condemnation of William Pryor's religion, is troubling. C. Boyden Gray, former counsel to President Bush's father, last night on television said, although he was an Episcopalian in his own personal religious belief, he did not feel any problem running these ads suggesting about what a good Catholic believes.

We have had the same thing in the committee. Members of the committee who are not members of the Catholic faith have been professing theology.

Late last night, I spoke on the Floor to explain my deep disappointment about the debate in the Judiciary Committee surrounding the nomination of William Pryor.

That negative discourse has now spilled over to the floor of the U.S. Senate and in the advertisements placed in our Nation's newspapers and on radio airwaves.

I never thought that we would ever be in the position that we find ourselves in today where members of this chamber are debating some of the most well settled and fundamental premises upon which our great Nation was founded.

Freedom from religious persecution is one of the pillars upon which our Nation and its Constitution rest, and there should be no debate about it.

In fact, our Founding Fathers thought it necessary to encapsulate that concept into the very text of the Constitution itself, in clause 3 of article VI.

That clause reads:

.    .    . no religious test shall ever be required as a qualification to any office or public trust under the United States.

It was General Charles Pinckney of South Carolina who, on August 20, 1787, introduced the provision at the Federal Convention that ultimately became part of the Constitution in Article VI. General Pinckney, like many of the pioneers, understood that religion can be abused by governments in divisive ways.

As early as the 17th Century, some Americans such as Roger Williams, expressed their objection to the common practice inherited from England of imposing a religious test for public office. However, by the beginning of the 18th Century, just about every Colony had enacted a law that limited eligibility for public office solely to members of certain denominations.

In Rhode Island, for example, one had to be a Protestant to become eligible for such office. In Pennsylvania, the law required a belief that God was "the rewarder of the good and punisher of the wicked." North Carolina disqualified from office anyone who denied "the being of God or the truth of the Protestant religion, or the divine authority of either the Old or New Testament."

The words of Oliver Ellsworth, a landholder who participated in the debates on December 17, 1787, capture the essence of the need for an affirmative prohibition now found in the Constitution. Ellsworth said:

Some very worthy persons . . . have objected against that clause in the constitution which provides, that no religious test shall ever be required as a qualification to any office or public trust under the United States. They have been afraid that this clause is unfavorable to religion. But my countrymen, the sole purpose and effect of it is to exclude persecution and to secure to you the important right of religious liberty. We are almost the only people in the world, who have a full enjoyment of the important right of human nature. In our country every man has a right to worship God in that way which is most agreeable to his conscience.

This morning, I am uncomfortable in offering this Resolution with my respected colleague, the Senator from Vermont and ranking member of the Senate Judiciary Committee, because I believe the rule change we seek with this Resolution should never be needed in a Chamber where every Member has sworn to uphold and defend the Constitution.

Yet events of the past few weeks compel us to act today.

Our resolution would simply state that it is the rule of the Senate to prohibit the questioning by any Senator of a presidential nominee's religious affiliation. The rule would thus require us to carry out in practice the wise admonitions of our Founding Fathers.

I hope my colleagues will join Senator Leahy and me in adopting this resolution.