For a Senator to question a judicial nominee about her religious beliefs—or to vote against the nominee on that account—is not “bigotry.” Nor does it violate the Religious Test Clause of the Constitution.
First, it’s not a religious test, because a religious test is a legal mandate or prohibition requiring a person to subscribe to a particular religious belief in order to serve in office. A religious test “compel[s] [a person] to believe or disbelieve” (or profess to) as the condition for holding public office. Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (emphasis added).
That isn’t the case when a Senator says “I won’t vote for this nominee because of her religious beliefs.” One can imagine some hypotheticals to the contrary—for example, if the senator uses the “blue slip” procedure to bar all nominees of one church; and a Senate-wide boycott of a particular faith could perhaps rise to that level. But it simply is not a religious test for a Senator to choose to vote no on a nomination on religious grounds.
Second, it’s not bigotry to choose to vote for or against a candidate because of her religious beliefs. Beliefs are not immutable characteristics of birth; they’re choices, and they are not just choices, but convictions based (one wishes, anyway) on evidence and argument. If I choose not to associate with a person or not to vote for a person because of his or her beliefs, that’s how the system ought to work, and religion is not a “Get Out of Critical Evaluation” card here. Can you imagine if it were otherwise?
Devout Christian: “Will you marry me?”
Atheist: “Um…no, we don’t agree about God.”
Devout Christian: “Help help! I’m being repressed!”
—I don’t think so. One can even imagine worse scenarios. Certainly a Senator would be free to inquire whether a nominee believes in the Islamic rejection of the separation of church and state, for example. And a Senator would be well within his or her rights to ask whether a nominee subscribes to religious dogmas about the inferiority of certain races, the persecution of homosexuals, witches, and the like. The entire purpose of the confirmation process is to vet a nominee’s beliefs. Certainly it’s unobjectionable to vote for a nominee based in part on his religious beliefs.
Indeed, only a person who thinks religious beliefs do not matter very much could believe otherwise; only someone who believes that religion is just a purely personal, aesthetic, habitual matter rather than a total abiding commitment to God, could call it “bigotry” for a person to base his actions, friendships, political commitments, etc., on such considerations. Only if one thinks of religion in that flippant way could one liken it to racial discrimination, which is wrong because race really is irrelevant to a person’s thinking. Only if one views religious commitments as equally irrelevant as race could one classify inquiries into religion as necessarily bigoted. It is simply not bigotry to refuse to vote for, or marry, or associate with, a person because she subscribes to the Catechism of the Catholic Church, or the ideas in the Doctrine and Covenants, or the Hadith or the New Testament, any more than it is bigotry to vote against or refuse to marry a person who believes in communism or facism or libertarianism. We would all recognize that it is not bigotry to vote for, or marry, a person based on his or her beliefs. On the contrary, taking religious ideas seriously means that we must understand, and inquire into, and evaluate these ideas and take seriously the way such beliefs will affect how a nominee is likely to use the powers of office.
Now, is it “bigotry” to say “I refuse to vote for all Mormons—I don’t care what they think or who they are?” Sure. But then, that’s not voting for or against the candidate based on his Mormonism. That’s actual bigotry, which is not a critical evaluation. So that only strengthens my point that it is not bigotry—whatever else it may be—to oppose a judicial nominee based on his or her beliefs. Nor is it relevant to get into abstruse theological questions with a nominee, and it might even be boorish to do so. But it would not be unconstitutional, or bigoted.
I’m not saying that it’s right or wrong to do so. I’m not saying it’s wise or foolish to do so, in any particular case. But it is neither bigotry nor—except in the unusual circumstances noted above—does it qualify as a religious test.
Update: from Winston E. Calvert, Judicial Selection and the Religious Test Clause, 82 Wash. U. L.Q. 1129, 1165–66 (2004):
Permitting political branches to scrutinize a candidate's religiously motivated ideology puts religiously motivated candidates on the same plane as non-religious candidates. Not scrutinizing religiously motivated ideology implicitly deems religious moral reasoning subordinate to non-religious morality whereas both are merely two sides of the same coin. It would also permit candidates and their supporters to play the “religion card,” draping their politics in religious clothing and thereby subverting the traditional scrutiny applied to judicial candidates. If the Clause proscribed inquiry into religiously motivated ideology, those with extreme ideological beliefs on either side of the political debates could claim a religious exemption merely because they could articulate some connection—however tenuous—between their ideology and religion. By permitting inquiry into a candidate's religiously motivated ideology, the Clause ensures the sect equality sought by its Framers.