Catholics Can Be Judges, Too

On May 8, President Trump nominated Professor Amy Coney Barrett of the Notre Dame Law School to be a judge on the Chicago-based United States Court of Appeals for the Seventh Circuit. Conservatives hail Barrett, an accomplished professor and former law clerk to the late Justice Antonin Scalia, as a constitutionalist who is committed to the rule of law. Trump’s choice was also met with encouragement across ideological boundaries: her fellow 1998-1999 Supreme Court law clerks wrote in unanimous support of Barrett’s nomination, attesting to her “remarkable legal abilities” and “professionalism, grace, and integrity.” The entire faculty of the Notre Dame Law School extolled her possession “in abundance” of the “qualities that shape extraordinary jurists,” an exceptional level of support for any jurist. Such rave reviews should not be taken lightly, given the wide range of political and judicial bents represented among her fans. Professor Barrett is a highly-qualified nominee who would have been a staple of any other Republican administration. But these are no ordinary times.

According to some Democrats, being a Catholic may now disqualify you from the federal bench. Specifically, Professor Barrett came under attack during her September 6th Senate confirmation hearing from Senator Dianne Feinstein (D-CA), who in reference to the relationship between law and religion claimed that “dogma and law are two different things.” Senator Feinstein went on to claim that “the dogma lives loudly” within Professor Barrett, citing speeches she has made about her faith. Particularly troublesome to Feinstein is an inflammatory report the left-leaning Alliance for Justice submitted to the Senate Judiciary Committee concerning a law review article Professor Barrett co-authored as a third-year law student. Barrett’s article makes the case that Catholic judges ought to recuse themselves in death penalty cases, as they are morally unable to impose the death penalty. Professor Barrett deflected the thrust of the article during her confirmation hearing, telling the Committee that she was in fact the junior partner in the project, and that an article she helped write as a twenty-something does not necessarily represent her view of the law decades later. The matter should have ended there, but some on the Left have since portrayed Professor Barrett as someone who believes she can put her faith above the Constitution whenever she sees fit—an easily disproven claim, if one actually reads the article. Recusing oneself when a case may affect impartiality is a perfectly reasonable practice that is put to use across the judicial branch, including in the Supreme Court. But Senator Feinstein, who faces a potentially tough reelection challenge from her party’s liberal wing, seems to have taken these false claims to heart, and has jumped on the chance to undercut a judicial candidate on religious grounds to advance her agenda. Public figures were quick to denounce the longtime Senator’s comments. Christopher Eisgruber, President of Princeton University, penned a letter urging the Judiciary Committee to avoid applying a religious test, which is prohibited under Article VI of the Constitution, to judicial candidates. He says that he read Professor Barrett’s controversial law review article and believes it is “fully consistent” with a judge’s duty to uphold the Constitution. The President of the University of Notre Dame, John I. Jenkins, wrote that Senator Feinstein’s tirade was “chilling,” and that what she terms “dogma” means “faith” to Catholics.

Senator Feinstein intimates that religious jurists are inherently less able to carry out their constitutional charge to faithfully interpret the law. This is a deeply unsettling claim, one that judicial history hardly supports. Two ideologically opposed former Supreme Court justices, Antonin Scalia and William J. Brennan, were both Catholics. Were these jurists somehow unable to keep their faiths out of their decision-making? Five of the current justices are Catholic. Clearly, the majority of the Supreme Court is not wrapped up in religious dogma. The administration of justice does not require secularization. There is a difference between religious beliefs serving as the foundation of a judge’s moral framework and religious beliefs playing an active role in judging. Suggesting to the contrary is like saying that if schoolteachers are Catholic, they might be unable to prevent their religious views from seeping into their instruction of science or literature. The same is true with judges: judging and faith are two separate spheres of life; one may influence the other, but one could never rightfully sway the other.

Despite Feinstein’s reservations, the Judiciary Committee voted along partisan lines to recommend Barrett’s nomination to the full Senate. It’s little wonder: Senator Feinstein’s actions during Professor Barrett’s confirmation hearing were a breach of her role as a Senator. Never should a candidate for office be undermined because of his or her faith. Such blatantly political attacks show disregard for as fundamental a right as any in America: the freedom of religion. We protect and defend our country so we can maintain that right, and others. That a United States Senator would challenge religious freedom based on an ill-conceived, partisan argument, and not back down or apologize, is the very definition of low politics and reflects the broader breakdown of civic virtue and basic kindness in this country. If steadfast respect for the rule of law and recognition of the role of faith in our lives equates to dogma, then perhaps the dogma lives loudly within us all.