Biden’s judicial nominee cannot reach the bench
The Senate should oppose Loren L. AliKhan’s nomination to the Appeals Court of the District of Columbia in order to protect all Americans’ civil rights. Her repeated failures in court and extreme arguments raise questions about her qualifications, fairness, and legal judgment.
She attacked people of faith, including Sikhs, in her private practice and as Solicitor General of D.C. Her position was opposed to the right to assemble for worship, the right of religious organizations to select teachers of faith, and the right of faith-based groups to form without government interference. Her attack on the First Amendment is outside the mainstream and has been rejected by several courts.
In fact, AliKhan’s arguments were too extreme for all nine members of the Supreme Court. AliKhan’s extreme legal theory would have effectively eviscerated the first freedom of the Constitution if it had been adopted in Hosanna Tabor v. EEOC in 2012. Specifically, she argued that a religious employer is entitled to make decisions about hiring and firing ministers without government interference under the ministerial exception.
As a result, all nine justices on the Supreme Court – including Ruth Bader Ginsburg, Sonia Sotomayor, Scalia, and Thomas – rejected AliKhan’s theories. In its unanimous opinion, the Supreme Court labeled her arguments “untenable” and “hard to square with the First Amendment, which gives special concern to religious organizations’ rights.”
AliKhan’s First Amendment theories were not rejected only by the Supreme Court. The District Court of District of Columbia, to which AliKhan is currently nominated, found her extreme. The District of Columbia disallowed people of faith from gathering for worship, but permitted massive gatherings for political protests. Despite his best efforts, AliKhan was unable to justify this differential treatment based on religion in Capitol Hill Baptist Church v. Bowser. Due to her loss in court, District of Columbia taxpayers were forced to reimburse the church $220,000 in legal fees.
As part of the Capitol Hill Baptist case, AliKhan and the D.C. attorneys presented a “doctor’s” affidavit to support COVID-19 restrictions. Sadly, this doctor was a political scientist, which falls well short of the required legal standard for expert witnesses. AliKhan gave the poor excuse that it was a “fast-moving” case when Senator Hawley questioned her about the case at her nominations hearing.
AliKhan’s confirmation should not be ‘fast moving’ as she described her handling of an important First Amendment case.
AliKhan’s narrow views on religious liberty would have segregated First Amendment protections to the walls of a church or a temple, and as the court said, would also run counter to charitable practices — and teachings in many cases — of diverse religious traditions. Moreover, the court rejected her shoddy legal analysis in another sharply worded opinion, noting that her arguments were “without a basis in text or precedent” and that she made a “quantum logical leap.”. As a result of her narrow views and poor legal analysis, a minority faith’s religious liberty rights are threatened, and diversity in our nation is endangered.