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Feinstein: ‘I Have Never and Will Never Apply a Religious Litmus Test to Nominees’

This afternoon, California senator Dianne Feinstein provided an additional statement to National Review in light of criticism she received after last week’s Senate Judiciary Committee hearing for Seventh Circuit Court of Appeals nominee Amy Coney Barrett.

During that hearing, Feinstein suggested that Barrett — a Notre Dame law professor and a Roman Catholic — might be disqualified from serving as a judge because of her Catholic faith. “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said. “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

Feinstein immediately received criticism from prominent conservatives, including several Republican senators on the Judiciary Committee. And, as Ed Whelan noted this morning at Bench Memos, that criticism quickly grew to include letters from Notre Dame president Father John Jenkins and Princeton University president Christopher Eisgruber, as well as several superb columns, including one by Sohrab Ahmari in yesterday’s New York Times.

Last week, Feinstein’s office gave National Review the following statement when asked about her comments during the hearing: “Professor Barrett has argued that a judge’s faith should affect how they approach certain cases. Based on this, Senator Feinstein questioned her about whether she could separate her personal views from the law, particularly regarding women’s reproductive rights.” Her press secretary also provided details about the parts of Barrett’s writing that were of concern to Feinstein.

As Ramesh Ponnuru pointed out on The Corner today, those “clarifications” didn’t do much to explain Feinstein’s original comments. In fact, the context seems to make her remarks worse upon closer examination. This afternoon, Senator Feinstein provided National Review with a further statement in light of the critical responses she has received:

I have never and will never apply a religious litmus test to nominees — nominees of all religious faiths are capable of setting aside their religious beliefs while on the bench and applying the Constitution, laws and Supreme Court precedents. However, I try to scrutinize nominees’ records to understand whether they are committed to being impartial and whether they can faithfully apply precedent.

Professor Amy Barrett is nominated to the Seventh Circuit Court of Appeals — a very important position. She has no judicial experience so senators have had to rely on her writings and public statements to determine the type of judge she would be.

Professor Barrett wrote an article, Catholic Judges in Capital Cases, where she suggested that a judge’s faith might affect their ability to rule in certain cases. In that article, she wrote in part that “litigants and the general public are entitled to impartial justice, and that may be something that a judge who is heedful of ecclesiastical pronouncements cannot dispense.” She also suggested that judges don’t necessarily have to follow precedent that conflicts with the original public meaning of the Constitution.

Senators must inquire about these issues when considering lifetime appointments because ensuring impartiality and fidelity to precedent are critical for the rule of law.

This statement is markedly different from the one Feinstein’s office issued last Thursday, even though it still neglects the fact that Barrett has explicitly argued for Catholic judges not to impose their faith on others, but to recuse themselves in the rare cases when their religious conscience prevents them from applying relevant law.

It is looking more and more unlikely that Feinstein — or any public figure on the left — will offer an apology for her comments, which, even charitably interpreted, impugned Barrett’s credentials merely because of her Catholic faith.

Update 3:15 p.m.: It is worth noting something further about the Barrett quote that Feinstein includes in her latest statement, as it seems the senator has taken the point out of its meaningful context. The quote is from “Catholic Judges in Capital Cases,” a 2005 article Barrett co-authored with current Catholic University of America president John Garvey. Feinstein cites a small portion of the article’s second paragraph, which, rather than making a fleshed-out argument, simply outlines the problem the authors seek to explore in their article — how ought Catholic judges balance the increased use of the death penalty in the U.S. legal system with the Catholic Church’s simultaneous campaign against capital punishment?

Here’s the quote Feinstein cites, this time in context:

The legal system has a solution for this dilemma — it allows (indeed it requires) — the recusal of judges whose convictions keep them from doing their job. This is a good solution. But it is harder than you think to determine when a judge must recuse himself and when he may stay on the job. Catholics judges will not want to shirk their judicial obligations. They will want to sit whenever they can without acting immorally. So they need to know what the church teaches, and its effect on them. On the other hand litigants and the general public are entitled to impartial justice, and that may be something that a judge who is heedful of ecclesiastical pronouncements cannot dispense. We need to know whether judges are sometimes legally disqualified from cases that their consciences would let them decide. [Emphasis added to indicate the portion cited by Feinstein]

Far from arguing that Catholic judges should be free to exercise partial justice or that they should recuse themselves from numerous cases due to their religious beliefs, the authors here are merely articulating the complex issue they plan to examine in their article. And the conclusion of that article can hardly be said to advocate anything improper. If it did, Feinstein probably would’ve cited that inappropriate conclusion rather than taking an introductory explanation out of context.


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