The Corner

Law & the Courts

Feinstein’s Office Makes It Worse

“Catholic leaders decry Dems’ questioning of judicial pick,” Kevin Freking reports for the Associated Press. That’s true, but criticism of Feinstein’s snide comments about judicial nominee Amy Coney Barrett’s belief in “dogma” has come from a broader range of people than that: Princeton University president Christopher Eisgruber, for example, is not a Catholic leader; nor is my fellow Bloomberg View columnist Noah Feldman, who says that Feinstein should retract her comments and apologize for them.

Feinstein does not appear to understand what the fuss is about. Her office’s clarification of her position actually makes the problem much worse. The initial comments could perhaps, with a great deal of charity, be defended. The Alliance for Justice had put out a shoddy report about Barrett (which I discuss here) that falsely insinuates that she would advance the tenets of her faith at the expense of the law.* Perhaps someone on Feinstein’s staff read the report, believed its distortions, and she then clumsily tried to raise the same issues in the hearing.

But take a look at the Barrett comments that Feinstein’s office has subsequently used to defend the senator. (You can find them in the update to this post by Alexandra DeSanctis.) One of them concerns her views about when a judge who opposes the death penalty should recuse himself from a capital case, and I treat that issue in the second-to-last link above. But the other two quotes are revealing, and not in a way that’s good for Feinstein.

From Feinstein’s office:

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.

Yes. It says that she thinks that Christian lawyers should strive, to use a very common phrase that has the same basic meaning but is not ordinarily understood to have sinister connotations, to be doing God’s work. It says that she thinks that a relationship with God is more important than a career. These are basic Christian beliefs. If you think they make it impossible or even harder for someone who holds them to apply the law fairly and justly, then you are hostile to Christians in public life.

Feinstein’s office adds another quote:

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.”

Again, this is basic Christian orthodoxy: God has a plan to redeem the world, all people have a role in it, and Christians should be mindful of that role. If you think that Barrett means that a judge should pretend that Christian doctrines are in U.S. law when they are not, you have a more simplistic view of the role of judges in redeeming the world than she appears to hold.

* Freking, the AP reporter, is himself too credulous about that Alliance for Justice report. In a 1998 law review article, Barrett and a co-author quoted William Brennan, during his confirmation hearings to be a Supreme Court justice, saying that “there isn’t any obligation of my faith superior” to his oath to the Constitution. The co-authors then write, “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.” The Alliance for Justice report finishes its own quotation there, creating the impression that Barrett and her co-author think that it’s okay for judges to decide cases based on the dictates of their faith rather than on the Constitution. I suspect the authors would have formulated the point differently, and more precisely, than Brennan did, if they were responding to the question that prompted his answer. But the very next line of their article read, “We mention it here for a different reason”–i.e., a different reason than commenting on the merits of Brennan’s comments. Their point in this section of the article was that it would have been wrong to ask Justice Brennan to recuse himself from a case that touches on Catholic teaching just because he was himself Catholic, and his own words help to explain why it would have been wrong.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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