Experts Say Bernie Sanders Can Vote Against Nominee Based on Religious Belief
The exchange between Sen. Bernie Sanders and Russel Vought during the latter's confirmation hearing as deputy director of the White House Office of Management and Budget last Wednesday became a subject of public debate as it brought to fore the religious tensions simmering in American society.
This happened when Sanders, who is a Jew, brought up an article written by Vought wherein he expressed that Muslims stand to be condemned for rejecting Jesus Christ. Despite the Evangelical Christian's satisfactory answers to the grilling, the senators showed his bias against the nominee not because of his competence but due to his religious convictions.
Constitutional scholars suggest Sanders may have violated the Constitution's prohibition against applying religious tests for public office. The specific provision referred to is Article VI which states that "no religious test shall ever be required as a qualification to any office or public trust under the United States."
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But some experts suggest that Sanders might get away with it. Stanford University law professor Michael McConnell said it is the prerogative of a senator to vote for or against the nominee for whatever reason or no reason at all. "There would be no legal consequence, and the nominee would have no forum for complaint," he added.
Allan Vestal of Drake University Law School pointed out the flaw in the religious test clause by not providing a mechanism to inquire into the motivations of senators in the votes they cast. New York University law professor Richard Epstein asked: if Sanders is picked on for voting based on religious grounds, how about other senators who silently vote for the same reasons?
For University of Alabama law professor Paul Horwitz, Sanders may not be held liable for voting based on a nominee's religious beliefs, but he may still have violated the religious test clause which doesn't carry a penalty. "Senator Sanders was not advancing a political view, but a theological one, and he has no business telling nominees that they must all believe and testify that that all roads to Heaven are the same," he said.
