WASHINGTON — Senate Democrats continued in May to expand their crusade against President Bush's conservative judicial nominees.

The case of J. Leon Holmes of Arkansas, a Catholic, comes closest to demonstrating that Democrats are now imposing an unconstitutional religious test for office that faithful Catholics and other traditional Christians cannot pass — especially those who are outspoken about their beliefs.

District Court nominees rarely generate controversy, but Holmes barely made it out of the Senate Judiciary Committee.

“I put in a motion to pass him out with no recommendation,” Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, told the Register shortly after the committee vote on May 1. “It passed by a party-line vote.”

Democrats are filibustering appeals-court nominees Miguel Estrada and Priscilla Owen — the first filibusters in history against appeals nominees. They have also threatened to filibuster appeals-court nominee Charles Pickering. All four nominees have excellent legal credentials. Estrada has refused to express publicly his views on abortion and Roe v. Wade.

A Senate filibuster means that 60 of 100 senators, instead of the usual majority, must vote to approve a motion.

Holmes’ “zealous advocacy for doing away with … a fundamental right [to abortion], along with extreme statements he has made about the separation of church and state, gay rights and gender equality, raises serious questions about his fitness,” wrote the leftist Alliance for Justice on March 25 to Hatch and Judiciary Committee ranking member Patrick Leahy, D-Vt.

At a judiciary hearing April 10, Sen. Dianne Feinstein, D-Calif., said: “In 1980 he wrote a letter to the editor stating that abortion should not be available to rape victims because conceptions from rape occur with the same frequency as snow in Miami. … He co-wrote [with his wife] an article in which he stated that, ‘The wife is to subordinate herself to her husband,’ and ‘The woman is to place herself under the authority of the man.’ How could I ever vote for this man to be a judge?

“In a recent article written with his son, Jeremy, he argues that ‘Christianity in principle cannot accept subordination to the political authorities, for the end to which it directs men is higher than the end of the political order.’ He wrote that ‘the abortion issue is the simplest issue this country has faced since slavery was made unconstitutional, and it deserves the same response.’"

Sen. Richard Durbin, D-Ill., read from a response Holmes had made to a question: “‘As a citizen I am troubled by the Supreme Court decisions in Dred Scott [declaring slaves personal property], Buck v. Bell,’ which is a case of involuntary sterilization by the state, ‘and Roe v. Wade, because in my view, each of those decisions failed to respect the dignity and worth of the human person.’ How can a person make that statement about Roe v. Wade and then quickly add that ‘I will apply this law with objectivity’? I think it is almost impossible.”

Applying Test?

“From time to time I think it does arise,” said Hatch when asked if Democrats are effectively applying a religious test. “I really think that it's despicable. Abortion has become their No. 1 issue. It's almost their only issue. So anyone who is pro-life gets opposed by them.”

“I think that's largely the case,” said John Nowacki, head of the Free Congress Foundation's Judicial Selection Monitoring Project, about a de facto religious test. “Nominees can’t just promise to obey a higher legal authority. They now must make a personal affirmation of Roe v. Wade … There seems to be a general hostility toward people who have acted on their faith.”

The Constitution says that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

The White House would not comment about the issue.

The Senate did confirm a conservative Bush nominee May 5 — Deborah Cook of Ohio — but in spite of the fact that she has received consistent support from the Ohio Right to Life Committee, Cook has a “limited record on women's rights and reproductive rights,” the pro-abortion Feminist Majority Foundation said. Cook won a seat on the Cincinnati-based 6th Circuit Court of Appeals.

Holmes, on the other hand, is a past president of Arkansas Right to Life who has also taught at Thomas Aquinas College in Santa Paula, Calif. He wrote senators explaining that the subordination of wives is long-standing Catholic doctrine but “I do not believe that the historic Catholic teaching that the marital relationship symbolizes Christ and the Church is or has been relevant to my conduct in my professional life, nor would it affect my conduct as a judge.” He has apologized for the 23-year-old comment about rape.

“These are legitimate public-policy issues,” Sen. Edward Kennedy, D-Mass., told the Register about what Democrats have raised about nominees. “The Supreme Court has said there is a right to privacy [the foundation for Roe v. Wade]. We are concerned about public-policy issues. These other things are red herrings used by the other side.”

Democrats have allowed the confirmation of some judicial nominees who are pro-life, Nowacki said. But often there is controversy over them.

“There seems to be an effort to try and tar these people, who are excellent nominees, so that they will not have any chance of being on the Supreme Court,” Hatch told reporters April 29.

Tom Jipping, director of the Concerned Women for America Judicial Appointments Project, said Democratic opponents “will identify certain views that are explicitly or implicitly products of their Christian faith.”

Regarding Holmes, he said, “The statements that he's made that they take issue with are primarily those he made in Catholic publications or to Catholic audiences. … The strategy here is to define an entire category of people as unfit for the bench. These Democrats do not believe judges apply the law impartially. They believe judges rule based on their personal views, so they oppose people whose personal views they cannot accept.”

He noted that in the case of Estrada, Democrats oppose him because they do not know what his personal views are.

Nowacki and Jipping identified several other judicial nominees who have been targeted by Democrats because of their views on abortion and homosexual rights, including Alabama Attorney General William Pryor, a Catholic outspoken on social issues.

Richard Thompson, president of the Thomas More Law Center, said Democrats are definitely applying a religious test.

“It highlights the importance with which the Democrats view judicial institutions,” he said. “They are pro-abortion, pro-homosexual rights, anti-traditional marriage, and they want judges who will implement their agenda.”

“I don’t think there is a doubt about it,” said Bill Donohue, president of the Catholic League for Religious and Civil Rights. “We carry the burden today of staying within the mainstream.”

Joseph A. D’Agostino writes from Washington, D.C.