Amy Coney Barrett is a Catholic, and a nominee to serve as a judge for the 7th Circuit Court of Appeals. The two shouldn’t conflict, or even have anything to do with each other, as the United States does not have religious tests. Nevertheless, Barrett’s faith became the subject of questioning last week from prominent Democratic Senators, notably Dianne Feinstein of California and Dick Durbin of Illinois.
Durbin, like many other Democrats, focused on a paper Barrett had co-authored 20-years ago. He questioned if Barrett considered herself an “Orthodox Catholic,” a term he had not heard of despite having gone through 19 years of Catholic education. He also harped on the term as it applied to Barrett’s personal faith, despite her providing an academic context. Durbin further used his time to ask about Barrett’s view of Pope Francis.
Feinstein went into a discussion of how “dogma and law are two different things,” and claimed that from reading Barrett’s speeches, “the conclusion one draws is that the dogma lives loudly within you.” She added her personal view that “that’s of concern.”
The Senators, particularly Feinstein, have been the subject of scrutiny from a wide range of media outlets, including prominent left-leaning outlets such as the Atlantic, the New York Times, and the Los Angeles Times. Catholic outlets and groups have spoken out about Barrett’s treatment, too, with the United States Council of Catholic Bishops responding. Social media also took notice, through #DogmaLivesLoudly.
Republican Senator Mike Lee of Utah, who has a Mormon considers himself “a religious minority,” discussed the questioning for the September 12 episode of “Tucker Carlson Tonight.” Lee said the questioning felt like a religious test to him, and explainedthat “this was settled in 1787, this was part of the original Constitution, pre-Bill of Rights, we cannot have religious tests that determines someone’s qualifications or lack thereof to serve in federal office.”
Lee referred to such questioning as “intolerance masquerading as tolerance is one of the most wicked things known to man,” emphasizing “we cannot allow it to take hold in our government.”
To Feinstein’s credit she issued a statement to National Review, which has reported extensively on the exchange, clarifying that she does not impose religious tests:
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.
Statements from Feinstein and her press secretary, nevertheless did communicate a concern with how Barrett might use her faith to rule on issues such as abortion, noting:
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.
Durbin responded over a radio program where he justified his questioning of Barrett, but likewise acknowledged there is no religious test:
There is no litmus test by religion. If she’d said she was orthodox Anglican, or orthodox Baptist, orthodox Jewish, whatever it might be, and had written on the subject when it came to being a judge, I think it’s fair to ask, ‘What does that mean? What would it mean if you were to get this judgeship?’ But I’m certainly not going to qualify or disqualify her based on her religious belief. The constitution tells me exactly the opposite. There is no religious litmus test for public office in America. It’s one of the few things the constitution says unequivocally and I respect that very much.
Another Democratic Senator, Al Franken of Minnesota, charged that Bennett spoke on behalf of a “hate group.” He was referring to Alliance Defending Freedom, one of many Christian organizations to receive such a label from the Southern Poverty Law Center.