Chemerinsky’s Fatuous Defense of Feinstein

by Ed Whelan

There he goes again.

Berkeley law school dean Erwin Chemerinsky has penned a defense of Senator Dianne Feinstein’s questioning of Seventh Circuit nominee Amy Coney Barrett. Let’s take a close look at it:

1. Amazingly, Chemerinsky never acknowledges, much less quotes, the specific remark by Feinstein that invites the charge that she is indulging anti-Catholic bigotry:

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.

Pro tip: If you want to defend someone against charges of bigotry but you won’t even disclose the statement that has been criticized as bigoted, perhaps you should reconsider whether to offer a defense.

2. Chemerinsky likewise never quotes Barrett’s emphatic rejection of the charge that her religious beliefs would affect her judging. As Barrett stated in the 1998 law-review article that Feinstein persistently misrepresented: “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.” At her hearing, she stated:

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.

And:

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.

Yet again:

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.

3. Chemerinsky’s glaring omissions are necessary to his defense of Feinstein. He deceptively claims at the outset of his piece that Barrett “had written about the duties of Catholic judges to be true to their religious beliefs.” Only four paragraphs later does he signal, rather obscurely, that Barrett was addressing only whether and when Catholic judges should recuse themselves from capital cases.

Oddly, even the caption of the photo of Barrett that accompanies Chemerinsky’s op-ed falsely states that Barrett “has written that Catholics must follow their religion on court decisions involving moral issues, such as abortion and the death penalty.” I half wonder whether Chemerinsky drafted the caption.

4. Chemerinsky posits some supposed conflict between Barrett’s article and her testimony that she “could not imagine sitting here any class of cases or category of cases on which I would feel obliged to recuse on grounds of conscience.” But Barrett’s article focused heavily on the recusal obligations of trial judges in capital cases and emphasized that the recusal question for appellate judges was much more complicated under Catholic moral teaching on improper cooperation. Ditto for issues beyond the death penalty. As Justice Scalia wrote (in an article that got enough attention that I’d think that Chemerinsky read it):

Capital cases are much different from the other life-and-death issues that my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state (of which I am in a sense the last instrument) that is decreeing death, but rather private individuals whom the state has decided not to restrain.

So there is no inconsistency between Barrett’s article and her testimony.

5. Chemerinsky gives the false impression that only “conservatives” have criticized Feinstein’s line of questioning. To sustain this impression, he misrepresents Notre Dame president John I. Jenkins as a conservative, and he completely ignores the strong critiques from liberal non-Catholics like Harvard law professor Noah Feldman (“Feinstein’s Anti-Catholic Questions Are an Outrage”) and Princeton president Christopher Eisgruber. Even Laurence Tribe says he “lean[s] toward [Feldman’s] critique.”

(There’s also a great Wall Street Journal op-ed today by another liberal, William A. Galston. I’ll highlight it in a separate post.)

6. As I have made clear in response to a more sober defense of Feinstein, I agree that it is fair to explore whether a judicial nominee will improperly indulge her own views in deciding cases. But there are proper and improper ways to conduct such an exploration, and there are sound and unsound bases for having concerns about a particular nominee.

Feinstein used an obvious misreading (intentional or not) of what Barrett had written on the relationship between a judge’s religious faith and the judge’s legal duty to insinuate, in a bigoted fashion (“the dogma lives loudly within you”), that Barrett, as a faithful Catholic, would not comply with her legal duty as a judge.

Chemerinsky can defend Feinstein only by engaging in his own misreading and by concealing her bigoted statement.

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