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Law & the Courts

Dianne Feinstein Attacks Judicial Nominee’s Catholic Faith

This afternoon, during a confirmation hearing for 7th Circuit Court of Appeals nominee Amy Coney Barrett, Democratic senator Dianne Feinstein attacked the nominee for her Roman Catholic faith.

Barrett is a law professor at the University of Notre Dame who has written about the role of religion in public life and delivered academic lectures to Christian legal groups. Drawing on some of these materials, Feinstein launched a thinly veiled attack on Barrett’s Catholic faith, asserting that her religious views will prevent her from judging fairly.

“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 is clearly hinting here at the Supreme Court decision in Roe v. Wade, a ruling that Feinstein supports so vociferously that she has even called it a “super-precedent.”

Here’s the video footage of Feinstein’s comment:

Feinstein issued this highly unnecessary and evidently anti-Catholic comment in spite of the fact that Barrett said earlier in the hearing, “It is never appropriate for a judge to apply their personal convictions whether it derives from faith or personal conviction.”

Other Democratic senators took issue with Barrett over her faith as well. Senate minority whip Dick Durbin criticized Barrett’s use of the term “orthodox Catholic,” insisting that it unfairly maligns Catholics who do not hold certain positions about abortion or the death penalty. (Durbin himself is a Catholic who abandoned his previous pro-life position.) “Do you consider yourself an orthodox Catholic?” he later asked Barrett point blank.

And Hawaii senator Mazie Hirono snarked, “I think your article is very plain in your perspective about the role of religion for judges, and particularly with regard to Catholic judges.”

These criticisms echo a report from the left-wing Alliance for Justice, which alleged that as a judge Barrett “would put her personal beliefs ahead of the law.” This and other claims contained in the report are completely unsubstantiated, much like the charge levied by Feinstein.

In fact, Barrett has explicitly written that “judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge.” She has also insisted that judges ought to recuse themselves in situations when their faith conflicts with their judicial responsibility.

One would think these arguments would resolve Democrats’ concerns, but it seems that those on the left are indeed willing to take issue with Barrett’s determination that Catholic judges should recuse themselves if personal convictions stemming from their faith would impede their ability to do their job.

Feinstein’s comments this afternoon revealed that anti-Catholic bigotry is still alive in the U.S., even, and perhaps especially, among those leftists who are the first to decry prejudice and discrimination against other minorities.

Update 09/07/17, 12:30 p.m.: Feinstein and Durbin have both responded to requests from National Review to further clarify their comments from yesterday’s confirmation hearing.

Here is the statement Feinstein’s press secretary gave National Review this morning: “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.”

Feinstein’s office also included the following information and quotes from Barrett’s past speeches and articles as “background” for Feinstein’s comments:

Speaking to the 2006 Notre Dame Law School graduating class, Barrett said:  “Your legal career is but a means to an end, and . . . that end is building the kingdom of God. . . . [I]f you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer.”  Admittedly, this is about lawyers and not about judges, but it speaks to her views on a legal career in general.

In a December 2015 piece for the University of Notre Dame Alumni Association, Barrett wrote that “[l]ife is about more than the sum of our own experiences, sorrows, and successes. It’s about the role we play in God’s ever-unfolding plan to redeem the world.” She continued: “That sounds lofty, but it’s about taking the long view.  Do we see success through the eyes of our contemporaries, or through the eyes of God? Do we focus only on what God does for us, or also on what God can do for others through us.”

And this is a line from Catholic Judges in Capital Cases that indicates that Barrett believes religion should affect an individual judge’s decisions vis-à-vis capital cases, even as it confirms she doesn’t believe religion should impact our overall legal system. “Judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge.  They should, however, conform their own behavior to the Church’s standard.  Perhaps their good example will have some effect.” [Emphases added by Feinstein’s office.]

Durbin likewise denied being motivated by the belief that a nominee’s religious views might disqualify her from serving as a judge. Here’s Durbin’s statement to National Review:

I prefaced my remarks by saying that going into a person’s religion is not the right thing to do in every circumstance. But she’s been outspoken. As a law school professor at Notre Dame she has taken on the tough challenge of how a person with strong religious beliefs becomes a judge and looks at American law. So I think she has fashioned herself somewhat of an expert and I didn’t feel uncomfortable asking that question.

Durbin’s communications director also pointed to Texas senator Ted Cruz’s line of questioning yesterday, in which Cruz asked Barrett, “I’ve read some of what you’ve written on Catholic judges and in capital cases and, in particular, as I understand it, you argued that Catholic judges are morally precluded from enforcing the death penalty . . . please explain your views on that because that obviously is of relevance to the job for which you have been nominated.”

Neither of these “clarifications” gives any indication that Feinstein and Durbin understand the gravity of their comments and questions yesterday. The quotes provided for context by Feinstein’s office reveal the senator’s severe misunderstanding and ignorance of what it means to live as a person of faith, and the statement from her press secretary exposes the underlying issue: a dogmatic insistence on upholding abortion rights over all else.

Meanwhile, Durbin’s statement shows that his question yesterday stemmed precisely from a distrust of Barrett’s subscription to certain Catholic teachings as a person of faith. Not to mention the fact that the Illinois senator surely would not apply his logic consistently to every judicial nominee who has in some way “been outspoken” or “fashioned him or herself somewhat of an expert.”

Update 09/12/17, 2:20 p.m.: Feinstein has provided an additional statement to National Review in light of criticism she received after last week’s hearing:

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.

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