Last week, in one of the most memorable and disturbing political exchanges in recent memory, Notre Dame Law Professor Amy Coney Barrett, a nominee for appointment by President Trump to the 7th Circuit Court of Appeals, was battered by several Democrat members of the Senate Judiciary Committee who questioned whether her Catholic faith should disqualify her from serving on the federal bench. The incident raised the specter of religious tests which are, of course, prohibited by the U.S. Constitution.
The story was reported extensively across both secular and Catholic media, including by the Register. Since that initial reporting, many important voices have spoken out about it, and there has been a significant backlash, as there should be.
Focus was placed particularly on California Senator Dianne Feinstein’s egregious comment to Professor Barrett that the “dogma lives loudly in you, and that is a concern when you come to big issues that large numbers of people have fought for years in this country.”
Senator Feinstein was echoed by Illinois Senator Richard Durbin’s own demand for Professor Barrett to disavow any notion that she is somehow an “orthodox Catholic,” as such a term is deemed unacceptable to those Catholics – including Durbin himself – who dissent obdurately and very publicly from the teachings of the Church on a number of issues, including abortion and same-sex marriage.
This was one of those rarest of political moments when people who normally are hard-pressed to agree on anything for once were in firm concord that the senators were completely out of bounds, spoke in a hate-filled manner and represented the worst kind of intolerance and bigotry.
As National Review noted in its coverage both Ryan Anderson of the Heritage Foundation and Fr. James Martin, S.J., expressed similar sentiments.
Anderson told National Review, “The Amy Barrett hearing, along with the [confirmation hearing of Office of Management and Budget deputy director nominee Russ Vought] and the Southern Poverty Law Center labeling Alliance Defending Freedom and Family Research Council ‘hate groups,’ reveals a new disturbing trend: Anti-Christian sentiments which were once only whispered behind closed doors are now being proclaimed from the rooftops by the most powerful people in society.”
And the progressive Jesuit Father James Martin tweeted a video of Feinstein and wrote, “Throwback to an era when Catholics were seen as unthinking tools of the Pope. You can be a good Catholic citizen in our country. Ask JFK.”
Senator Mike Lee, R-Utah, spoke on the floor of the Senate decrying the actions of his fellow senators:
Even more significant have been the letters sent by Father John Jenkins, C.S.C., president of Notre Dame University and Christopher L. Eisgruber, president of Princeton University, as well as an editorial by the N.Y. Times, an unusual development to be sure.
Father Jenkins wrote:
Dear Senator Feinstein:
Considering your questioning of my colleague Amy Coney Barrett during the judicial confirmation hearing of September 6, I write to express my confidence in her competence and character, and deep concern at your line of questioning.
Professor Barrett has been a member of our faculty since 2002, and is a graduate of our law school. Her experience as a clerk for Judge Laurence Silberman of the U.S. Court of Appeals and Supreme Court Justice Antonin Scalia is of the highest order. So, too, is her scholarship in the areas of federal courts, constitutional law and statutory interpretation. I am not a legal scholar, but I have heard no one seriously challenge her impeccable legal credentials.
Your concern, as you expressed it, is that “dogma lives loudly in [Professor Barrett], and that is a concern when you come to big issues that large numbers of people have fought for years in this country.” I am one in whose heart “dogma lives loudly," as it has for centuries in the lives of many Americans, some of whom have given their lives in service to this nation. Indeed, it lived loudly in the hearts of those who founded our nation as one where citizens could practice their faith freely and without apology.
Professor Barrett has made it clear that she would “follow unflinchingly” all legal precedent and, in rare cases in which her conscience would not allow her to do so, she would recuse herself. I can assure you that she is a person of integrity who acts in accord with the principles she articulates.
It is chilling to hear from a United States Senator that this might now disqualify someone from service as a federal judge. I ask you and your colleagues to respect those in whom “dogma lives loudly”—which is a condition we call faith. For the attempt to live such faith while one upholds the law should command respect, not evoke concern.
Rev. John I. Jenkins, C.S.C.
Princeton’s Dr. Eisgruber wrote:
Dear Chairman Grassley and Ranking Member Feinstein:
I write, as a university president and a constitutional scholar with expertise on religious freedom and judicial appointments, to express concern about questions addressed to Professor Amy Barrett during her confirmation hearings and to urge that the Committee on the Judiciary refrain from interrogating nominees about the religious or spiritual foundations of their jurisprudential views.
Article VI of the United States Constitution provides explicitly that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This bold endorsement of religious freedom was among the original Constitution’s most pathbreaking provisions. The Supreme Court’s unanimous decision in Torcaso v. Watkins (1961), holding that the First and Fourteenth Amendments render this principle applicable to state offices and that it protects non-believers along with believers of all kinds, is among the greatest landmarks in America’s jurisprudence of religious freedom. Article VI’s prohibition of religious tests is a critical guarantee of equality and liberty, and it is part of what should make all of us proud to be Americans.
By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state, or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s “no religious test” clause.
I am sympathetic to the challenges that your committee faces as it considers nominees to the federal bench. In my book The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press, 2007), I argued that your committee need not defer to presidential nominations, and that the Constitution permits senators to probe the judicial philosophies of nominees. It is, however, possible to probe those philosophies without reference to the religious affiliation or theological views of a nominee, and Article VI insists that the Senate observe that restriction.
The questions asked of Professor Barrett about her Catholic faith appear to have been provoked in part by her co-authored article, “Catholic Judges in Capital Cases” (1998). I have read that article, and I believe that the views expressed in it are fully consistent with a judge’s obligation to uphold the law and the Constitution. As a university president committed to free speech, academic freedom, and religious pluralism, I must add that, in my view, Professor Barrett’s qualifications become stronger by virtue of her willingness to write candidly and intelligently about difficult and sensitive ethical questions: our universities, our judiciary, and our country will be the poorer if the Senate prefers nominees who remain silent on such topics.
I am deeply concerned by the harsh and often unfair criticisms that are now routinely levelled from both sides of the political spectrum against distinguished judicial nominees who would serve this country honorably and well. On the basis of her accomplishments and scholarly writing, I believe that Professor Barrett is in that category. She and other nominees ought in any event to be evaluated on the basis of their professional ability and jurisprudential philosophy, not their religion: every Senator and every American should cherish and safeguard vigorously the freedom guaranteed by the inspiring principle set forth in Article VI of the United States Constitution.
Christopher L. Eisgruber
Just as interesting was an op-ed in the N.Y. Times [https://www.nytimes.com/2017/09/11/opinion/the-dogma-of-dianne-feinstein.html?_r=0contributed] by Sohrab Ahmari, a senior writer at Commentary magazine and Catholic convert in England. He noted in his piece, “The Dogma of Dianne Feinstein”:
The episode was symptomatic of a repressive turn among Western liberals. Earlier this year, Senator Bernie Sanders railed against Russell Vought, whom President Trump has nominated as the deputy director of the Office of Management and Budget and who had once written that Muslims “stand condemned” for rejecting Jesus. This was indeed a crude way of putting Christian doctrine. It wouldn’t have been unreasonable for lawmakers to press Mr. Vought to ensure that he wouldn’t discriminate against Muslims while serving in government. But were Mr. Vought’s comments disqualifying, as Senator Sanders argued? Taken to its logical conclusion, that would mean any strong expression of theological conviction is unwelcome in the public square. Orthodox Muslims — who hold the Quran to be God’s final and fullest revelation, superseding Mosaic law and Christianity — wouldn’t fare any better under the Sanders rule, if it were applied uniformly.
The pushback against Feinstein, Durbin and other Democrat members of the Senate Judiciary Committee is heartening not just for Catholics but anyone concerned about the state of religious freedom in this era of intolerance in the name of equality, diversity and political correctness. Politically, provoking this fight at a time when the Democrats are already struggling to claim they are open to Pro-Life voters and candidates also makes their job significantly harder. And the quote, “The dogma lives loudly within you” will resonate for elections to come.