Democrats on the Senate Judiciary Committee expressed concerns about a judicial nominee’s religious commitments during a hearing Wednesday, suggesting the nominee’s devout Catholicism may preclude her from discharging her judicial duties.
The nominee, Notre Dame Law School Professor Amy Coney Barrett, was tapped for a seat on the 7th U.S. Circuit Court of Appeals by President Donald Trump in May. Barrett is a Roman Catholic who has previously written about faith in public life and spoken to Christian legal groups in her capacity as an academic.
A coalition of leftwing groups, including the Alliance for Justice (AFJ), allege that Barrett has endorsed the priority of religious belief over established case law when the two conflict in her professional publications.
“Stunningly, Barrett has asserted that judges should not follow the law or the Constitution when it conflicts with their personal religious beliefs,” AFJ claims. Legal academics have strongly disputed this characterization of her position.
Sen. Dianne Feinstein of California, the ranking Democrat on the panel, signaled sympathy with those concerns, and sharply questioned Barrett about a law review article she wrote in 1998 entitled “Catholic Judges in Capital Cases,” which appeared in the Marquette Law Review. In the article, Barrett concluded that a Catholic trial judge who is a conscientious objector to the death penalty should recuse himself if asked to enter an order of execution against a convict.
During Wednesday’s hearing, Barrett emphasized that the set of circumstances considered in the article were narrow, and that she participated in death penalty cases as a law clerk at the U.S. Supreme Court. She added that she wrote the article some 20 years ago as a third year law student in conjunction with a professor, and that she was the junior partner in the project.
Feinstein remained unpersuaded.
“When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said of Barrett’s writings regarding the professional obligations of Catholic practitioners. “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”
“It is never appropriate for a judge to apply their personal convictions, whether it derives from faith or personal conviction,” Barrett said in response to those objections.
Other Democrats were equally forthright in expressing their concerns.
“Ms. Barrett, I think your article is very plain in your perspective about the role of religion for judges, and particularly with regard to Catholic judges,” said Democratic Sen. Mazie Hirono of Hawaii, echoing Feinstein.
Senate Minority Whip Dick Durbin of Illinois took issue with Barrett’s use of the term “orthodox Catholics” as it appears in her article, to the extent that it brands Catholics who do not hold certain positions on capital punishment or abortion as heterodox or possibly heretical.
“Do you consider yourself an orthodox Catholic?” Durbin asked.
“If you’re asking whether I’m a faithful Catholic, I am, although I would stress that my own personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge,” Barrett replied.
Durbin said that some individuals who embrace the term have criticized Pope Francis for alleged deviations from Catholic orthodoxy, prompting Barrett to express her admiration for the pontiff.
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Speaking after the hearing, the senator — himself a Catholic — told The Daily Caller News Foundation that Barrett has written at length about the role of faith in public life, which warrants questions about her views.
“I prefaced my remarks by saying that going into a person’s religion is not the right thing to do in every circumstance,” he told TheDCNF. “But she’s been outspoken. As a law school professor at Notre Dame she has taken on the tough challenge of how a person with strong religious beliefs becomes a judge and looks at American law.”
“So I think she has fashioned herself somewhat of an expert and I didn’t feel uncomfortable asking that question,” Durbin added.
The questions prompted GOP Sen. Ben Sasse of Nebraska to ask Barrett about the Constitution’s religious test clause, which prohibits the imposition of religious scrutiny against public officials. The provision was adopted as a bulwark against legislation like the English Test Acts of the 17th and 18th centuries, which required officeholders to swear oaths conforming to the beliefs of the Church of England.
“I think some of the questioning that you have been subjected to today seems to miss some of these fundamental constitutional protections we all have,” Sasse said.
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