Roman Catholic leaders are objecting to Democratic senators’ line of questioning for one of President Donald Trump’s judicial nominees, arguing the focus on her faith is misplaced and runs counter to the Constitution’s prohibition on religious tests for political office.
The outcry stems from the questioning last week of Amy Coney Barrett, a Notre Dame law professor tapped to serve on the U.S. Court of Appeals for the Seventh Circuit. Democrats focused on whether her personal views would override her legal judgment, especially with respect to the landmark 1973 Supreme Court decision legalizing abortion.
Sen. Dianne Feinstein, D-Calif., told Barrett that dogma and law are two different things and she was concerned “that the dogma lives loudly within you.”
Feinstein’s comments upset Notre Dame’s president, the Rev. John I. Jenkins, who wrote a letter this past weekend to the senator and the Judiciary Committee, calling the questioning “chilling.” The U.S. Conference of Catholic Bishops said the challenge to Barrett was a painful reminder of a time when “anti-Catholic bigotry did distort our laws and civil order.”
The uproar underscored the volatile mix of religion, politics and the law, with Democrats worried Trump judicial nominees, once seated on the courts, will reverse abortion rights. Democrats changed the Senate rules in 2013 to a simple majority to ensure confirmation of the president’s nominees, which now leaves Democrats with little recourse to stop Trump’s picks. Beyond the Senate political fight, the dispute carries echoes of the 1960 campaign when some voters feared that Catholic candidate John F. Kennedy would take orders from the pope if elected president.
“People of faith, whatever faith they may hold, should not be disqualified because of that faith from serving the public good,” said Archbishop William E. Lori, chairman of the Catholic Bishops’ committee on religious liberty.
Jenkins implored the senators to “respect those in whom ‘dogma lives loudly’ — which is a condition we call faith. For the attempt to live such faith while one respects the legal system should command respect, not evoke concern.”
Jenkins said that Barrett made it clear that she would “follow unflinchingly” all court precedent and, in rare cases in which her conscience would not allow her to do so, she would recuse herself.
The Alliance for Justice counters that federal judges don’t get to pick and choose which cases they will hear or which issues they address. Laurie Kinney, a spokeswoman for the group, said that a judge recusing themselves from a case because they disagree with the law on religious grounds is “the definition of putting faith ahead of the law, in our view.”
Feinstein said Monday she would never apply a religious litmus test to nominees, but “senators must inquire about these issues when considering lifetime appointments because ensuring impartiality and fidelity to precedent are critical for the rule of law.”
A key focus of the hearing was a 1998 law review article titled “Catholic Judges in Capital Cases.” In the article, Barrett and John H. Garvey said Catholic judges are obliged to adhere to their church’s teaching on moral matters and the legal system has a solution for this dilemma by allowing judges to recuse themselves when beliefs keep them from doing their job.
“This is a good solution. But it is harder than you think to determine when a judge must recuse himself and when he may stay on the job. Catholic judges will not want to shirk their judicial obligations,” they wrote.
In the article, Garvey and Barrett cited comments from Supreme Court Justice William J. Brennan, Jr., who was asked during his confirmation hearings in 1957 whether he could abide by his oath of office in cases where “maters of faith and morals” mixed with “matters of law and justice.” Brennan replied that in the cases that come before him “it is that oath and that alone which governs.”
“We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty,” Barrett and Garvey wrote.
In questioning from Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa, Barrett emphasized that the article in question was written during her third year in law school and she was “very much the junior partner in our collaboration.”
Barrett said that while her views have broadened since then, she stands behind the core proposition of the article that it is never permissible for a judge to “follow their personal convictions in the decision of a case, rather than what the law requires. That article emphasized that point repeatedly.”
Barrett also said, “Sitting here today, I can’t think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience.”
Democratic Sens. Mazie Hirono of Hawaii and Dick Durbin of Illinois also pressed Barrett, with Hirono asking a hypothetical: If she had been nominated to serve as a district court judge, would she recuse herself as a “Catholic judge from death penalty cases”?
“I would recuse myself and not actually enter the order of execution. That was the only conclusion the article reached. And I would stand by that today,” Barrett said.
Princeton University President Christopher L. Eisgruber said that Barrett’s qualifications, in his view, become stronger because of her willingness to write candidly and intelligently about difficult ethical questions.
“Our universities, our judiciary, and our country will be the poorer if the Senate prefers nominees who remain silent on such topics,” Eisgruber wrote.
Before joining the Notre Dame faculty, Barrett clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Supreme Court Justice Antonin Scalia, who died in February 2016.