Feinstein and Durbin: the only good Catholic is a bad Catholic?

By Phil Lawler ( bio - articles - email ) | Sep 07, 2017

Article VI of the US Constitution states:

The Senators and …all executive and judicial Officers… shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

That’s reasonably clear, isn’t it? No religious test. When the members of the Senate Judiciary Committee assess the qualifications of someone nominated to be a federal judge, they should focus on the candidate’s commitment to the Constitution, not to any religious dogma.

Still it might be legitimate for lawmakers to question whether a nominee’s religious views could conflict with her constitutional duties. So in questioning Amy Barrett, a Notre Dame law professor named by the Trump administration for a seat on the federal bench, Senator Chuck Grassley of Iowa, the committee chairman, asked: “When is it proper for a judge to put their religious views above applying the law?” Barrett replied in a word: “Never.”

That’s pretty clear too, wouldn’t you agree? There cannot be a religious test. Barrett’s religious views are irrelevant to her qualifications. She has said that it is never—never—appropriate for a judge to put her religious views ahead of her duty to apply the law. So why would any senator continue the line of questioning?

Because some senators didn’t like Barrett’s religious views. “The dogma lives loudly within you,” said Senator Dianne Feinstein. Feinstein evidently meant for that sentence to sound sinister. I can only say that I wish people would say the same thing about me. And as Ross Douthat of the New York Times has pointed out, it’s not only the dogma that has lived loudly within Barrett; a faithful Catholic, she is the mother of seven children.

But Feinstein’s blatantly anti-Catholic swipe at Barrett was not, actually, the most troublesome moment of the hearing. Nor was it the most flagrant violation of the constitutional ban on a religious test. For that we must turn to Senator Dick Durbin of Illinois, a self-described Catholic. Durbin took Barrett to task for her use of the term “orthodox” to describe Catholics who uphold Church teaching. Some Catholics who use that label have criticized Pope Francis, Durbin said. He relented only when Barrett said that she would prefer to describe herself as a “faithful” Catholic, and that she admires the Pope. So a “faithful” Catholic who supports the Pope could be an acceptable candidate for a federal judiciary seat, but an “orthodox” Catholic who criticizes the Pope could not? Isn’t that clearly a religious test?

Feinstein wants us to fear Barrett because of the (Catholic) dogma that is living within her, ready to pounce out upon an unsuspecting public. That’s the old-fashioned anti-Catholicism of Blaine and Blanshard, the fear of rum and Romanism, an echo of the whispers that Al Smith would surrender American sovereignty to the Holy See. Durbin’s approach is more urbane, more insidious; he conveys the impression that he can accept a Catholic candidate for judiciary office as long as she is the right kind of Catholic.

Ironically, the questions about Barrett’s Catholicism arose primarily because of an article that she had co-authored, nearly 20 years ago, on the death penalty—in which she had taken a position that Durbin and Feinstein should have welcomed. The Alliance for Justice, a fiercely partisan group, had dredged up the article in its “opposition research,” and apparently provided the Democratic senators with some “waving material,” without making the effort to convey what the article actually said.

Barrett’s co-author John Garvey—who is now president of the Catholic University of America, but was then Barrett’s law professor—filled in the blanks in an article of the Washington Examiner. He opened with a pointed observation: “I never thought I’d see the day when a coalition of left-wing groups attacked a Republican judicial nominee for opposing the death penalty.”

In the article in question, Garvey explained, he and Barrett had observed that leaders of the Catholic Church (and of the Episcopalian, Presbyterian, Quaker, Methodist, and other religious communities) held that the death penalty is immoral. “We went on,” Garvey wrote, “to say that a Catholic judge who held that view might, in rare cases, have to recuse herself…”

Let’s review.

Barrett (and Garvey) suggested that if a judge could not impartially enforce the law because of religious convictions, that judge should not hear the case. In other words, that the judge should not allow religious convictions to take precedence over legal interpretation. So why would any lawmaker be worried about Barrett’s religious views?

Because she’s a Catholic.