I’m going to address a couple of defenses of Senator Feinstein’s questioning of Seventh Circuit Amy Coney Barrett that have recently been offered, but before I do, I figured that it would be useful to place Feinstein’s controversial remarks in the broader context of the hearing.
1. At the outset of the hearing, Senator Grassley asked Barrett about her article on “Catholic Judges in Capital Cases.” In that article, as I explain here, Barrett argued that Catholic judges “are morally precluded from enforcing the death penalty” and should therefore recuse themselves from cases in which they might be required to do so. She emphatically rejected another alternative that many on the Left might favor—that Catholic judges should apply Catholic teaching and undermine the death penalty. Instead, she embraced the proposition that Catholic judges “cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”
Grassley asked Barrett to “elaborate on these statements and discuss how you view the issue of faith versus fulfilling the responsibilities as a judge today.” Specifically: “When is it proper for a judge to put their religious views above applying the law?”
Let me start with your very last question and say, “Never.” It is never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.… I continue to stand and vehemently believe the core proposition of that article, which is that if there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, it is never, ever permissible for that judge to follow their personal convictions in the decision of a case rather than what the law requires.
2. In her first round of questioning immediately after Grassley, Feinstein asserted that Barrett’s response “leaves me a bit puzzled because you have a long history of believing that your religious beliefs should prevail.” Feinstein did not invite Barrett to respond to this slander, but instead went on to a series of questions about Roe v. Wade.
(Among her distortions, Feinstein stated that “as a textbook co-authored by Justice Neil Gorsuch last year points out, Roe is super-precedent because it has survived more than three dozen attempts to overturn it.” Wonder why that never surfaced in the Gorsuch hearing? Because Feinstein’s statement is false. The book, The Law of Judicial Precedent, instead states in its glossary (p. 802) that Roe “has been called a superprecedent” (emphasis added)for that reason. The authors themselves don’t apply that label to it. Is that distinction too subtle for Feinstein and her crack staff?)
3. In response to Senator Hatch’s questioning, Barrett reiterated:
If a judge ever felt that for any reason that she could not apply the law, her obligation is to recuse. I totally reject and I have rejected throughout my entire career the proposition that, as you say, the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome.
4. In response to Senator Hirono’s questioning, Barrett again stated:
I continue to subscribe to the core argument of that article, which is that a judge may never subvert the law or twist it in any way to match the judge’s convictions from whatever source they derive.
(Hirono, who has shown herself to be quite a demagogue, nonetheless baselessly asserted that there was some supposed inconsistency between Barrett’s article and her testimony. Clearly having failed to understand Barrett’s article—if, that is, she ever even looked at it—she ridiculously asserted that the article “was enough of a statement of what you believe the role of religion was that it caught my attention, because I thought that justice was supposed to be blind.”)
5. In response to Senator Blumenthal, Barrett pointed out some significant evidence for the proposition that she doesn’t let her religious views affect her legal judgment (versus no evidence for the contrary proposition):
I have gotten bipartisan support in ways that I have found actually very moving — all the law clerks the term that I clerked, [for] nine different Justices, many different views, all my colleagues, 70 members or more than 70 members of my academic colleagues, hundreds of Notre Dame alumni, people across the ideological spectrum. And if these people, especially people who disagree with me on policy matters, thought that I would be about the business of imposing my policy beliefs, I would not have received such bipartisan support. I have conducted myself as a professional my whole career and would continue to do so if I were confirmed.
6. It was after all of this that Feinstein made her controversial statement:
Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.
As I see it, and as I might address in follow-up posts, I think that this broader context reinforces charges that Feinstein’s remarks reek of anti-Catholic bigotry.