Wednesday, September 13, 2017
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.
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.
Editorial on 09/13/2017
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