Bench Memos

Law & the Courts

‘Rampant Anti-Semitism shows Jews’ power’

Maybe that will be the title of the sequel to Michael Sean Winters’s “Barrett’s confirmation hearing shows Catholicism’s power.”

Those familiar with the National Catholic Reporter won’t be surprised that it’s published a piece that defends Senator Feinstein and her fellow Democrats against charges of anti-Catholic bigotry in their questioning of Seventh Circuit nominee Amy Barrett; that takes various ill-informed whacks at conservative Catholics; and that conveniently fails to mention the trenchant criticisms of Feinstein by liberal non-Catholics like Harvard law professor Noah Feldman and Princeton president Christopher Eisgruber.

But everyone ought to be amazed by what Winters claims is “the most obvious fact about the controversy: There is a big, fat compliment to Catholics in this.” According to Winters, “It is unimaginable that a senator would pursue a similar line of questioning with a Presbyterian or a Congregationalist.” Perhaps so. But, I would argue, that’s not because Catholicism “is assumed to matter … as an intellectual force” but rather because bigotry against Catholics—or, more precisely, against a perceived brand of conservative Catholics—is so popular, indeed seemingly instinctive, in some quarters.

Winters also opines that Boston College professor Cathleen Kaveny had the better of Notre Dame professor Rick Garnett when she stated, “You can’t say that our faith on the one hand has ramifications for politics, law and the common good and on the other hand expect not to answer questions about it and claim that faith is purely private.” But Kaveny’s statement has two interrelated flaws. First, she misses the elementary point that it is entirely coherent to maintain that the role of a legislator or law professor is distinct from that of a judge. Second, Barrett never remotely claimed that her faith “is purely private.” Rather, she explained that “it is never, ever permissible for [judges] to follow their personal convictions in the decision of a case rather than what the law requires.”

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