Notre Dame Law School Professor Amy Coney Barrett faced a confirmation hearing on Wednesday for her nomination as a federal appeals judge, and faced a line of questioning that is not only disgusting, but likely illegal. Unearthing a law review article Barrett co-wrote while a student in 1998 about religious judges and their approach to the death penalty, Democratic Senators grilled Barrett, not just regarding hypothetical situations she could face, but about her personal religious observance.
Sen. Dianne Feinstein brought up the article, titled “Catholic Judges in Capital Cases,” and told Barrett, “the dogma lives loudly within you.” Sen. Mazie Hirono said, “I think your article is very plain in your perspective about the role of religion for judges, and particularly with regard to Catholic judges.”
The article, which Barrett co-wrote nearly 20 years ago, deals with one particular subject, the death penalty. It expressly states early on that a number of religions are against it, but that the focus in the article would be on Catholicism because the authors happen to be Catholic. Barrett clarified during the hearing that the choice of writing from the perspective of Catholics had already been made by the professor she was working with. The article discusses how judges with such religious beliefs should address death penalty cases, and how they can recuse themselves if the law goes against their personal beliefs.
The article states, “Judges cannot-nor should they try to-align our legal system with the Church’s moral teaching whenever the two diverge.” Yet somehow, Barrett was treated as if she wants to turn the United States into a Catholic society.
Going further than Feinstein and Hirono in jumping to conclusions about Barrett’s judicial philosophy, Sen. Dick Durbin flat out asked her about her personal religious beliefs. Durbin picked out the phrase “Orthodox Catholic” which was used in Barrett’s article, and asked her she is one. Barrett made it clear that “Orthodox Catholic” isn’t a real thing, and that—as was noted in the article—it was used “for lack of a better term” to mean a particularly observant Catholic, compared to say, an Orthodox Jew. Barrett said, “I am a Catholic, Senator Durbin,” but she said her personal religious beliefs “would not bear on the discharge of my duties as a judge.”
Sen. Ben Sasse countered this line of questioning by pointing out that the Constitution prohibits religious scrutiny of public officials. “I think some of the questioning that you have been subjected to today seems to miss some of these fundamental constitutional protections we all have,” Sasse said.
Law professor Carissa Hessick from University of North Carolina was taken aback as well. She called out Durbin and hoped that others would too.
I hope that reporters press @SenatorDurbin on why he thinks it is acceptable to question judicial nominees about their religious beliefs https://t.co/X5GMR9EzUr
— Carissa B Hessick (@CBHessick) September 6, 2017
Sasse and Hessick are right. If Senators have concerns about how a judicial nominee will do her job, they should ask her about the job or how she would address specific legal issues. To jump to conclusions due to someone’s religion, and then basically accuse them of being unfit because of their religion, goes against what this country is all about.
[Image via CSPAN screengrab]
This is an opinion piece. The views expressed in this article are those of just the author.