Notre Dame law professor Amy Barrett has been nominated to the Court of Appeals for the 7th Circuit. Barrett is a former Scalia law clerk.

Barrett’s nomination hearing in early September generated a lot of attention when Democrat Senators attacked her for being a religious Christian. The National Review reported at the time:

A judicial confirmation hearing this week stoked fears among conservatives that it is becoming acceptable on the American left to voice intensely anti-Christian sentiments.

On Wednesday afternoon, the Senate Judiciary Committee held a hearing for Amy Coney Barrett — a law professor at the University of Notre Dame and President Trump’s nominee to the Seventh Circuit Court of Appeals — during which two senators, Dianne Feinstein (D., Calif.) and Dick Durbin (D., Ill.), suggested that Barrett’s Catholic faith might disqualify her from serving as a judge.

“When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said. “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.” Durbin, meanwhile, criticized Barrett’s prior use of the term “orthodox Catholic,” saying it unfairly maligns Catholics who do not hold certain positions about abortion or the death penalty. “Do you consider yourself an orthodox Catholic?” he asked her outright

Such questioning, which appears to set a religious test, arguably violates Article VI of the Constitution:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, 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.

This questioning of Barrett received a lot of pushback, and not just from Trump supporters. Columnist John Kass wrote in The Chicago Tribune, Durbin, Democrats reveal their bigotry in questioning of judicial nominee from Notre Dame:

There’s something refreshingly honest about those Democrats revealing their bigotry in the halls of the United States Senate.

They did so in questioning Amy Coney Barrett, a law professor from Notre Dame, a Catholic and woman of impeccable academic credentials, who has been nominated to the 7th Circuit Court of Appeals in Chicago, a Catholic town….

But among many Democrats and the left, Christian faith does not command respect. It is no longer merely suspect; it is a threat.

Would Democratic senators dare ask such questions of a Muslim or a Jew? No. Their own party would condemn them as would every newspaper editorial board in the country.

The brains of Feinstein and Durbin could not possibly conceive of such a question to someone who wasn’t Christian, lest they burn themselves upon their own secular stake.

But a Christian, a Roman Catholic? Hey, that’s different, isn’t it?

The attack on Barrett continues, with a NY Times article amplifying the anti-Catholic attitude of the Democrats, Some Worry About Judicial Nominee’s Ties to a Religious Group:

One of President Trump’s judicial nominees became something of a hero to religious conservatives after she was grilled at a Senate hearing this month over whether her Roman Catholic faith would influence her decisions on the bench….

Ms. Barrett told the senators that she was a faithful Catholic, and that her religious beliefs would not affect her decisions as an appellate judge. But her membership in a small, tightly knit Christian group called People of Praise never came up at the hearing, and might have led to even more intense questioning.

Some of the group’s practices would surprise many faithful Catholics. Members of the group swear a lifelong oath of loyalty, called a covenant, to one another, and are assigned and are accountable to a personal adviser, called a “head” for men and a “handmaid” for women. The group teaches that husbands are the heads of their wives and should take authority over the family.

Current and former members say that the heads and handmaids give direction on important decisions, including whom to date or marry, where to live, whether to take a job or buy a home, and how to raise children.

Legal scholars said that such loyalty oaths could raise legitimate questions about a judicial nominee’s independence and impartiality. The scholars said in interviews that while there certainly was no religious test for office, it would have been relevant for the senators to examine what it means for a judicial nominee to make an oath to a group that could wield significant authority over its members’ lives.

The NY Times article was seen as the dog whistle that it was. Mollie Hemingway at The Federalist wrote,  New York Times Joins Campaign Against Catholic Judicial Nominee:

The article is written by religion reporter Laurie Goodstein, and is not of her typical caliber. It begins by attempting to exculpate the senators who grilled her by blaming Barrett for their questions. She suggests that they were not bigots but only asking Barrett legitimate questions that arose from her writing. It was really her fault she was asked about the dogma living loudly within her, because she had failed to cleanse all of her scholarship at the University of Notre Dame from mention of religion.

Then the story darkly suggests that she was not being truthful when she said she could be a fair appellate judge, because she’s a member of a group that the senators would have liked to grill her about even more had they known she was a member:

Ms. Barrett told the senators that she was a faithful Catholic, and that her religious beliefs would not affect her decisions as an appellate judge. But her membership in a small, tightly knit Christian group called People of Praise never came up at the hearing, and might have led to even more intense questioning.

Ed Whelan at National Review called the Times article a “Hit Piece”:

Barrett has received stellar reviews from all of her Notre Dame colleagues, other law professors, every single one of her fellow Supreme Court clerks, and her former students. Appeals to religious bigotry aside, there is, in short, no basis for any concern that she lacks the independence of judgment needed to be an outstanding judge….

[NY Times author] Goodstein and her supposed experts never seem to contemplate the possibility that a person who is accustomed to receive and to reflect on (as well as to give) advice in the realm of family life might have developed the faculty of critical self-reflection that well suits the judicial role.

Whelan then went through some of the specific accusations against Barrett, and found them false or misleading. For example:

Another indication of Goodstein’s bias: She falsely states that Barrett at her hearing “backed away” from the position in her 1998 law-review article that (in Goodstein’s words) “sometimes Catholic judges should recuse themselves from the sentencing phase of death penalty cases.” Even worse, she links to a characteristically error-strewn Alliance for Justice attack post (“It’s a Fact: Barrett Misled the Senate Judiciary Committee”) as support for her false claim.

As I’ve explained before (in point 4 of this post), and as law professor Rick Garnett points out in response to Goodstein, Barrett’s article focused heavily on the recusal obligations of trial judges in capital cases and emphasized that the recusal question for appellate judges—the role she would fill—was much more complicated under Catholic moral teaching on improper cooperation.

There also have been other reactions in response to the continuing attacks on Barrett. Somehow I’ve ended up on a lot of mailing lists. The Catholic Association released this statement:

“Notre Dame Law Professor Amy Barrett is an incredibly intelligent woman who is superbly qualified to sit on the federal bench. Finding no flaws in her credentials, critics have sunk to a new low by attacking her faith. The New York Times insinuates impropriety in Professor Barrett’s choice to deepen her faith within a group of other Catholics. With nothing of substance undermining Professor Barrett’s nomination, her opponents are left bashing the rights to religion and association guaranteed by our Constitution.” Andrea Picciotti-Bayer, Legal Advisor for The Catholic Association Foundation.

Leonard Leo, on leave from the Federalist Society and the person believed to be influential in Trump’s judicial selection process, issued this statement:

“Professor Amy Barrett could not be more qualified for the court as her Senate hearing clearly showed. The continued efforts to disqualify her because of her faith will fail, and certain Democrat Senators and media outlets should be ashamed of themselves for sowing this bigotry and divisiveness. ‘No religious test’ for public office under our Constitution means no religious test. I am confident a majority of the Senate agrees.”

Trump has been hitting home run after home run with his judicial nominations. So Democrats apparently are trying whatever they can to damage nominees, including playing on religious bigotry.


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