Washington is currently embroiled in one of its “gotcha” controversies, which often arise when minor missteps are blown into major crimes. It’s a game both parties and a variety of activists play whenever they see political advantage in it. The latest one is unfortunate not because it arose but because it involves serious questions that could use calm debate rather than expressions of outrage.
Last week, the Senate Judiciary Committee held a hearing that featured judicial nominees, including Amy Coney Barrett, a Notre Dame law professor chosen for the 7th U.S. Circuit Court of Appeals, located in Chicago. The issue that came up was whether, as a Catholic, Barrett could fairly decide cases where the result might conflict with her religious convictions.
Sen. Dianne Feinstein, D-Calif., told Barrett that “the dogma lives loudly within you” and worried that it might take priority over the impartial administration of justice. Sen. Dick Durbin of Illinois asked, “Do you consider yourself an orthodox Catholic?”
It may seem out of bounds for senators to raise the matter of how a judge’s Catholic faith would affect her decisions. But the senators didn’t raise it; Barrett did, in a 1998 law review article examining the obligations of Catholic judges in death penalty cases. It concluded that judges faithful to church teachings “are morally precluded from enforcing the death penalty.”
The liberal Alliance for Justice interprets this to mean that judges “should be free to put their personal views ahead of their judicial oath to faithfully follow the law.” But Barrett didn’t say a Catholic judge should use her power to prevent death sentences. What she said is that if a judge can’t in good conscience follow the law in a capital punishment case, she should recuse herself and let another judge take over.
That’s an honest, reasonable position, and it should come as good news to anyone who fears she would enforce religious doctrine from the bench. It’s also a position that senators are fully entitled to ask her about in evaluating her nomination.
Given that Barrett said judges shouldn’t let religious faith dictate their decisions, the exact content of her Catholicism, which Durbin wondered about, is irrelevant. He and Feinstein also erred by putting the issue in terms that could easily be interpreted to mean they distrust devout Catholics. That gave Barrett’s supporters room to accuse them of indulging bigotry and imposing a religious test for office.
It’s an implausible charge on its face. Both voted to confirm John Roberts and Sonia Sotomayor, who are Catholics. So, by the way, is Durbin, and Feinstein graduated from a Catholic high school.
But any senator who asks a judicial nominee about her faith has to take great care not to alarm believers or encourage anti-Catholic prejudice. On this, the two senators fell short. Even Christopher Hale, a former staffer for President Barack Obama and now head of the liberal Catholics in Alliance for the Common Good, criticized Feinstein’s comments.
Barrett has made clear her moral objections to capital punishment and abortion. Senators on either side of the partisan aisle have a right to consider how those views might affect her decisions. But her openness about how judges with such beliefs should handle their duties is reassuring rather than alarming.
At a 2013 event at Notre Dame looking back on Roe v. Wade, by the way, she said it was “very unlikely” the court would ever overturn it: “The fundamental element, that the woman was a right to choose abortion, will probably stand,” Barrett said, sounding realistic, not fanatical.
Last week’s hearing was an opportunity to illuminate the issue of how judges should handle conflicts between their moral convictions and their constitutional duties. Too bad the senators missed that opportunity.