Senator Dianne Feinstein (D-CA) and other Judiciary Committee Democrats are being pilloried by everyone from the president of Princeton to the National Review for asking questions of a witness. The questions were directed to law professor Amy Coney Barrett, who has been nominated to the Seventh Circuit Court of Appeals. She has never been a state or district court judge, so she has no prior judicial record to examine. What she does have is a lengthy law review article, plus a few speeches, stating her views on how religious belief should affect judges in the performance of their duties, particularly those involving capital punishment.
Some of us think a twenty-thousand word article on this question shouldn’t be necessary. “Judges should follow the law, period, regardless of their religious beliefs” is quite a bit shorter than twenty-thousand words.
But that is not Barrett’s view. She insists that because the Catholic Church has (recently) come down fairly hard (though not 100 percent) against capital punishment, Catholic judges should refuse to do part of their jobs—they should “recuse” themselves from cases that might involve capital punishment.
Many of her twenty-thousand words are devoted to a fine parsing of what Catholic judges should and shouldn’t do. For example, running the part of the trial that decides whether an accused murderer is guilty or not is less problematic, in her view, than running the sentencing part of that trial. Then of course there are appeals, evidentiary hearings, jury selection, etc., each with its own separate balancing test, until the reader’s eyes glaze over.
For simple-minded folks like me the four words, “just do your job” are a lot more appealing.
Suppose you ran an ice cream store and a prospective employee tells you, “I’m happy to serve customers vanilla and chocolate, but I’m not touching the strawberry. So I’ll just recuse myself when a customer requests strawberry, and let somebody else scoop it.” I wouldn’t hire an employee like that. Nor would I vote to confirm a judge who said she was willing to handle some matters but not others.
Religious interference with the performance of official duties is not a matter of idle speculation these days. Kim Davis is an example of a government official who decided she would give marriage licenses to heterosexual couples, but not to the same-sex couples her religion frowns on. In essence she “recused” herself, forcing gay couples to get their licenses from some other county. She would not be on my hire list either.
In North Carolina the legislature passed a bill in 2015 allowing magistrates to recuse themselves from same-sex marriage issues as well. The governor, a conservative Republican who was adamantly opposed to same-sex marriage, was even more opposed to the idea of magistrates not doing their jobs—so he vetoed the bill, using far fewer than twenty-thousand words to say that “no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath.”
Barrett’s article was primarily about capital punishment, but it’s likely her duty-shirking would extend beyond that. Indeed, much of the article describes the church’s waffling on capital punishment, which she contrasts with its unambiguous opposition to abortion and euthanasia. If a case on abortion or death-with-dignity comes her way, Barrett should be able to spend more afternoons on the beach.
How about immigration? The church insists that only Vatican City can have a wall, not the United States. Steve Bannon may well be right that the church’s moral position rather conveniently aligns with its economic interests in filling its empty pews, especially when you contrast today’s hand-wringing with its rather different stance against admitting Jewish refugees in the 1930s. Appellate courts have been heavily involved in dealing with the various versions of Trump’s Muslim ban—will Barrett nap through these cases as well?
How about the avalanche of litigation over taxpayers subsidizing the Catholic Church after the Trinity Lutheran debacle which has already begun? She describes pronouncements of the National Conference of Catholic Bishops as being especially “authoritative”—and there is not the slightest doubt about how the bishops will view these cases. How about school prayer? Crosses on public property? Access to contraception? The vast array of religious privileges claimed by prisoners, zoning applicants, and nuns who dislike pipelines? Before taxpayers start paying Barrett $217,000 a year for the rest of her life, it would be nice to know just how much work she plans to do.
In fairness, Barrett insists, both in the article and in her testimony, that once a judge decides to take a case, it must be decided based solely on the law, without any religious bias. That’s great, if you believe her—a belief that is strained a bit by her advice to graduating law students:
Your legal career is but a means to an end, and . . . that end is building the kingdom of God. . . . [I]f you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer.
Wendell Griffen, the religious Arkansas judge who is claiming that RFRA absolves him from complying with the “impartiality” standard of the Arkansas judicial conduct code, can fairly be called a “different kind” of judge devoted to “building the kingdom of God.” When it comes to judges, I prefer the old-fashioned kind.
Folks who earn their money whining about “Christian persecution” are trying to spin the line of questioning about Barrett’s article into a violation of the Constitution’s “no religious test for office” clause, or tie it to historic bigotry against Catholics. This is nonsense. Senator Feinstein has voted to confirm hundreds of Catholics in her long Senate career without giving their religion a second thought. That’s because most of them take the same position as the late Justice William Brennan, a Catholic who was asked during his 1957 confirmation hearing whether he could abide by his oath in cases where “matters of faith and morals” got mixed with “matters of law and justice.” He said: “Senator, [I took my] oath just as unreservedly as I know you did … And … there isn’t any obligation of our faith superior to that. [In my service on the Court] what shall control me is the oath that I took to support the Constitution and laws of the United States, and [I shall] so act upon the cases that come before me for decision that it is that oath and that alone which governs.”
Barrett’s article expressly stated that she was not defending Brennan’s position. For my money, that’s the only position any office holder of any religion should take.