Sen. Dianne Feinstein. Photo by Daniel Torok/U.S. Forest Service, courtesy San Bernardino National Forest on Flickr.
A U.S. senator claiming in 2017 that a candidate for federal judgeship may be unfit for the position because of her faith sounds like a joke, or at least a gross exaggeration.
Few if any current senators would make such a suggestion if the candidate happened to be a Muslim, a Jew or a Buddhist. If someone did, there would be a firestorm of outrage, most likely led by nationally prominent Democrats who claim to see a bigot in every conservative. But in a recent case where one of their own pointedly questioned a Catholic law professor, the party’s silence has been telling.
Sen. Dianne Feinstein, D-Calif., expressed skepticism that Amy Coney Barrett could simultaneously be fit to serve on the 7th U.S. Circuit Court of Appeals and a serious practitioner of her faith. In Barrett’s hearing before the Senate Judiciary Committee, Feinstein said “[…] I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.” Read: abortion.
As the editorial board of The Wall Street Journal pointed out, the senator’s ugly words were even more inappropriate considering they were based on a misreading, willful or otherwise, of a law review article Barrett co-authored back in 1998. In it, the authors reached the conclusion that when Catholic judges experience an unresolvable conflict between their faith and the law as it is written, they should simply recuse themselves. This is a perfectly sound answer, and one that should satisfy Feinstein and her colleagues.
Instead, the hearing was an unwelcome reprise of the ugly anti-Catholic bigotry not widely seen in this country since the days when John F. Kennedy’s opponents speculated that he would make the White House subject to the will of the Pope. That fear was ludicrous then – as the Democrats of the day were quick to point out – and it is equally ridiculous now.
The irony of Democrats attacking judiciary candidates for their Catholicism extends beyond their respect for President Kennedy. Another Kennedy they often applaud – Supreme Court Justice Anthony Kennedy – has written many opinions revered by Democrats in defense of individual rights, from Lawrence v. Texas to Obergefell v. Hodges to U.S. v. Windsor. He also cast key votes in Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt to preserve abortion rights. In fact, five of the nine Supreme Court justices currently serving are Catholic, including Justice Sonia Sotomayor, one of the Court’s most consistent liberal voices.
But the only case on Feinstein’s mind was clearly Roe v. Wade when she asked point-blank whether Barrett would be a no vote on preserving the case should the question arise. Barrett answered that, as an appeals judge, she would have no opportunity to disregard Roe but that, like her fellow nominee Michigan Supreme Court Justice Joan Larsen, she would be bound by clear existing precedent. Feinstein more or less dismissed Larsen and Barrett’s reasonable answers by observing that all candidates tell the Senate Judiciary Committee they will be bound by precedent, regardless of their real intent.
Sen. Dick Durbin, D-Illinois, also jumped in to demand of Barrett: “Do you consider yourself an orthodox Catholic?” The suggestion that anyone’s orthodox religious views could, by default, disqualify them from serving as a federal judge is a disturbing one. It is even more so coming from Durbin, who is himself Catholic. As Kelsey Dallas pointed out for Deseret News, the appearance of religious faith has long been an asset for candidates for office in the legislative and executive branches, while it increasingly seems to be a liability in the judiciary.
John Jenkins, president of the University of Notre Dame, wrote a letter to Feinstein expressing his dismay at the questioning Barrett underwent. “I am one in whose heart ‘dogma lives loudly,’” Jenkins wrote, “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.”
Princeton University President Christopher Eisgruber also wrote a letter criticizing lawmakers’ anti-Catholic questioning during Barrett’s hearing. Not all the criticism came from outside the committee, either. During the hearing itself, Ben Sasse, R-Neb., and Jeff Flake, R-Ariz. argued that questions about Barrett’s faith crossed the line.
To be perfectly fair, only the people who made these deeply offensive comments are responsible for them. But I could not find instances of other prominent Democrats – who are quick to call upon Trump and other Republicans to “denounce” any idiotic comment made by one of their own – disavowing their Senate Judiciary Committee colleagues over this blatant anti-Catholic behavior. What would it take before they did so? If Democrats had not asked the questions they did, would they instead be theatrically outraged over Sen. Ted Cruz, R-Texas, asking about the impact of Barrett’s faith on death penalty cases during the same hearing?
This incident is just another depressingly familiar example of the political left’s hypocrisy over what it likes to call tolerance and diversity. To many, tolerance means tolerating anyone who believes the same as they do. Diversity means welcoming anyone, regardless of how they look, as long as they vote the same way. And when it comes to religious freedom, it apparently means we are all free not merely to worship privately as we choose, but to keep the fact that we might choose to worship private as well – on pain of being assumed not to know the difference between private faith and public duty.