Bench Memos

Law & the Courts

Stone and Segall on Dianne Feinstein

In a New York Times op-ed, law professors Geoffrey R. Stone and Eric J. Segall come to Senator Feinstein’s defense.

I’ll volunteer that the Stone/Segall piece is much more measured than I expected when I saw Stone’s and Segall’s names in the byline. It was Stone, after all, who absurdly argued some years ago that the five Catholic justices who ruled that the federal partial-birth abortion law enacted by Congress is constitutionally permissible “failed to respect the fundamental difference between religious belief and morality” (and who has been way out there on a host of other matters). And Segall was co-author (with Richard Posner) of a silly op-ed that grossly distorted Justice Scalia’s views in order to accuse him of promoting a “majoritarian theocracy.”

Stone and Segall concede that Feinstein was “surely guilty of poor word choice,” as “the term ‘dogma’ has an ugly historical context, often used by 19th-century Protestants to express anti-Catholic bigotry.” They minimize this as “an objection more to style than to substance,” but surely the same could be said of all sorts of expressions of bigotry. So I don’t quite see how they end up acquitting her of anti-Catholic bigotry.

Stone and Segall write:

[Senator Feinstein] was asking whether someone of deep faith and who had previously openly (and in our opinion eloquently) written about the relationship between judging and faith could cast aside her deeply held views when judging. Had Ms. Barrett said that her faith would in fact deeply influence her judging, would the question had been deemed so wrong? We think not.

Likewise, if senators had asked Justice Ruth Bader Ginsburg during her confirmation hearing if her long history litigating claims of gender discrimination would influence her judging, or if they had asked Chief Justice John Roberts whether his time working in the Bush administration would affect his decision making, no one would have blinked.

I agree with much of this. But unlike the facts of Ginsburg’s litigation history and Roberts’s executive-branch work, Barrett had made quite clear that it’s improper for judges to allow their religious convictions to influence their judging. So the hypothetical foundation for Feinstein’s questioning didn’t exist. Worse, her obstinate mischaracterization of Barrett’s position, while perhaps attributable to simple confusion, reasonably invites charges of bigotry.

Stone and Segall also write:

Judges regularly decide difficult legal issues in which the law at issue is unclear. In those open spaces, a judge’s personal values and life experiences will inevitably play a role in the outcome of the case. Given that Ms. Barrett had previously explored the relationship between her deeply held religious views and judging, Ms. Feinstein acted well within the bounds of fair questioning to probe deeply on this question.

I’m not persuaded that a judge’s “personal values and life experiences will inevitably play a role” in the outcome of some cases. But that doesn’t matter here. Because I instead think that it’s proper to try to ensure that that doesn’t happen, I agree with Stone and Segall that the territory is fair ground for senators to explore.

The problem is that Feinstein did not “probe deeply” or fairly. She instead 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.

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