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Catholic leaders decry Dems’ questioning of judicial pick

Senate Judiciary Committee ranking member Dianne Feinstein of California makes a statement about President Trump's firing of FBI Director James Comey during a committee hearing on Capitol Hill in Washington on May 10, 2017. (AP Photo/Cliff Owen)

WASHINGTON (AP) — Roman Catholic leaders are objecting to Democratic senators’ line of questioning for one of President Trump’s judicial nominees, arguing the focus on her faith is misplaced and runs counter to the Constitution’s prohibition on religious tests for political office.

The outcry stems from the questioning last week of Amy Coney Barrett, a Notre Dame law professor tapped to serve on the U.S. Court of Appeals for the 7th Circuit. Democrats focused on whether her personal views would override her legal judgment, especially with respect to the landmark 1973 Supreme Court decision legalizing abortion.

Sen. Dianne Feinstein, D-Calif., told Barrett that dogma and law are two different things and she was concerned “that the dogma lives loudly within you.”

Feinstein’s comments upset Notre Dame’s president, the Rev. John I. Jenkins, who wrote a letter this past weekend to the senator and the Judiciary Committee, calling the questioning “chilling.” The U.S. Conference of Catholic Bishops said the challenge to Barrett was a painful reminder of a time when “anti-Catholic bigotry did distort our laws and civil order.”

The uproar underscored the volatile mix of religion, politics and the law, with Democrats worried Trump judicial nominees, once seated on the courts, will reverse abortion rights. Democrats changed the Senate rules in 2013 to a simple majority to ensure confirmation of the president’s nominees, which now leaves Democrats with little recourse to stop Trump’s picks.

Beyond the Senate political fight, the dispute carries echoes of the 1960 campaign, when some voters feared that Catholic candidate John F. Kennedy would take orders from the pope if elected president.

“People of faith, whatever faith they may hold, should not be disqualified because of that faith from serving the public good,” said Archbishop William E. Lori, chairman of the Catholic bishops’ committee on religious liberty.

Jenkins implored the senators to “respect those in whom ‘dogma lives loudly’ — which is a condition we call faith. For the attempt to live such faith while one respects the legal system should command respect, not evoke concern.”

Jenkins said Barrett made it clear she would “follow unflinchingly” all court precedent and, in rare cases in which her conscience would not allow her to do so, she would recuse herself.

The Alliance for Justice counters that federal judges don’t get to pick and choose which cases they will hear or which issues they address. Laurie Kinney, a spokeswoman for the group, said that a judge recusing himself or herself from a case because the judge disagrees with the law on religious grounds is “the definition of putting faith ahead of the law, in our view.”

Feinstein said Monday (Sept. 11) she would never apply a religious litmus test to nominees, but “senators must inquire about these issues when considering lifetime appointments because ensuring impartiality and fidelity to precedent are critical for the rule of law.”

A key focus of the hearing was a 1998 law review article titled “Catholic Judges in Capital Cases.” In the article, Barrett and John H. Garvey said Catholic judges are obliged to adhere to their church’s teaching on moral matters and the legal system has a solution for this dilemma by allowing judges to recuse themselves when beliefs keep them from doing their job.

“This is a good solution. But it is harder than you think to determine when a judge must recuse himself and when he may stay on the job. Catholic judges will not want to shirk their judicial obligations,” they wrote.

In the article, Garvey and Barrett cited comments from Supreme Court Justice William J. Brennan Jr., who was asked during his confirmation hearings in 1957 whether he could abide by his oath of office in cases where “matters of faith and morals” mixed with “matters of law and justice.” Brennan replied that in the cases that come before him “it is that oath and that alone which governs.”

“We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty,” Barrett and Garvey wrote.

In questioning from Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa, Barrett emphasized that the article in question was written during her third year in law school and she was “very much the junior partner in our collaboration.”

Barrett said that while her views have broadened since then, she stands behind the core proposition of the article that it is never permissible for a judge to “follow their personal convictions in the decision of a case, rather than what the law requires. That article emphasized that point repeatedly.”

Barrett also said, “Sitting here today, I can’t think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience.”

Democratic Sens. Mazie Hirono of Hawaii and Dick Durbin of Illinois also pressed Barrett, with Hirono asking a hypothetical: If she had been nominated to serve as a district court judge, would she recuse herself as a “Catholic judge from death penalty cases”?

“I would recuse myself and not actually enter the order of execution. That was the only conclusion the article reached. And I would stand by that today,” Barrett said.

Princeton University President Christopher L. Eisgruber said Barrett’s qualifications, in his view, become stronger because of her willingness to write candidly and intelligently about difficult ethical questions.

“Our universities, our judiciary, and our country will be the poorer if the Senate prefers nominees who remain silent on such topics,” Eisgruber wrote.

Before joining the Notre Dame faculty, Barrett clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Supreme Court Justice Antonin Scalia, who died in February 2016.

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  • If Republicans did not want to make religious beliefs a relevant factor in evaluating people for public position then they should have been refraining from:
    1. Entangling sectarian beliefs with their political positions (all that “Real Christians vote Republican nonsense”)

    2. Using Christian belief as an alleged qualifier to office.

    3. Using religious belief as the professed overriding factor in interpreting the law. (Scalia was notorious for that)

    As I see it Republicans made religious beliefs fair game here by putting them in play for their own benefit. So they must also reap the disadvantages of such tactics.

  • The purpose of the religious test, in my opinion, is to keep a candidate from being rejected due to membership (or lack thereof for atheists) in a specific religion or denomination. How can their personal religious beliefs not affect their politics? Republicans want judges to have anti-abortion views, Democrats pro-choice, for example. But the questions can’t be addressed to their denomination’s beliefs or scriptures.

  • Barrett is exactly the kind of nominee that terrifies Democrats, because their own judicial fellow travelers have been “follow[ing] their personal convictions in the decision of a case, rather than what the law requires” for generations. So whether Barrett sticks to the actual intent of law and Constitution or allows her personal convictions to determine rulings, either way they’re screwed.

  • It is a fair question to ask judicial nominees whether their personal views will affect their judgment on a case. However, to broadly state that a Catholic judge will use her “dogma” on all cases is wrong. The nominee’s answer is what a judge should do in cases where her personal beliefs prevent her from judging a case within the bounds of the law and the facts: recuse herself. Unfortunately, the alt-right and its slimy cohorts are running with this, tarring “Hebraic Senator” Feinstein for her questioning.

  • It was a legitimate line of questioning. If her Catholicism overrides her oath, as that article mandates (rather than suggest) then she should be disqualified. Of course hierarchs in the Catholic church will be indignant because they believe they have the right to impose their beliefs on the rest of Americans.

  • “because their own judicial fellow travelers have been “follow[ing] their
    personal convictions in the decision of a case, rather than what the
    law requires” for generations.”

    Such as…..?

    It is an accusation that never gets supported by much beyond grousing over results people don’t like and some truly boneheaded misconceptions of the nature of our court system, Common Law system precedent and judicial review.

    As I see it, Conservatives generally have a problem with forming good faith, well supported legal arguments in Federal Courts. Which is why collateral attacks on the power of the judiciary are fairly common among them. Rather than try to make a valid argument, they simply throw their hands up and declare, “the court didn’t have the power to do that!”

  • Read Article VI of the Constitution.

    “no religious test shall ever be required as a qualification to any office or public trust under the United States”

  • These questions were clearly prompted by what Barrett had previously written (or co-written). They are not unreasonable to ask. Now, Barrett is free to wave off what she wrote (or co-wrote), or elaborate on it. Maybe it’s not as big a deal as some might think … but to be asked about it is entirely appropriate, and the question gives her a chance to explain herself. 

    I just don’t get the outrage here. It makes no sense. Especially in light of the common Christian trope that non-believers are fully disqualified from any public office (judicial, or otherwise). I’m definitely getting more than a small whiff of “hypocrite” as I read all the sanctimonious objections…. 

  • So no response for my request for examples of liberal judges following personal conviction instead of meeting the requirements of law. OK.

    So when does America get an apology from all of the Conservative politicians who have campaigned using their church affiliation as an alleged qualifier for office and maligned of non-believers as unsuitable for office? It won’t. Conservatives are being typically spineless. They don’t like being called out on their bad behavior.

    I hardly call it a religious test. As stated by other posters a religious test would make membership in a given faith/sect a qualifying characteristic. In this case the questions concern whether one’s specific individual religious beliefs, ones already put at issue as political talking points by conservatives, affect their ability to do the job. Conservatives already opened the door by entangling political and religious views unnecessarily. By doing so they made such things fair game. Moreover they were prompted by her own writings.

    It is highly hypocritical to complain about tactics and rhetoric that one used to their advantage when it suddenly becomes a liability.

  • We should note that most Catholics are OK with contraception and abortion. It’s the bishops and the Vatican that make problems by trying to get government to impose their medieval doctrines imposed on all women. Check out the great DC-based Catholics for Choice. — Edd Doerr

  • Funny how some people seem to want a narrow definition of religion when the issue is a religious test, and a broad definition when the issue is establishment. Do you think you could all make up your minds?

    Hypocrisy, thy name is…

  • I’ll say this much right off the bat — the word”religion” clearly does not change meaning between the 1st Amendment and Article VI.

    So, which do you go with? Narrow or broad? And then I’ll give my own take if you still want it.

  • No one is wholly objective…NO ONE. I don’t care if they are left, right, or upside down. We are all influenced in our decision making by our individual values, and that includes the authors of the Constitution. Therefore this remains a case of political football on all sides.

  • I don’t think there’s much of any advocacy for a narrow definition here and a broad definition there. Texas A&M University Chancellor John Sharp, in his previous elective office of State Comptroller of Accounts, refused to grant a religious exemption to Ethical Culture, a sort of Humanist sect, because he stated they did not constitute a religion per se. Now, at the time Sharp, a conservative Democrat, was beginning a run for Lieutenant Governor against Rick Perry (yes, that Rick Perry), and as a conservative Catholic facing off against a conservative Methodist, he was throwing the religiously prejudiced a bone. He still lost, but it was the narrowest loss of a statewide race 23 years ago and since no Democrat has won an election to statewide office, but Sharp came the closest. It is doubtful the stance on ethical culture gained Sharp much at all in votes. He may have been acting out of sincere belief, but it was also a cynical calculation as well.

  • That I believe primarily refers to elective office, not appointive. And that is routinely violated by the voters, who voted for or against John Adams, Thomas Jefferson, Jimmy Carter, George W. Bush, and so many others on the basis of their religion. But there is no enforcement of it. Raymond Flynn was Ambassador to the Vatican under Obama because he was a Catholic Democrat. That wasn’t wrong. Our present Supreme Court is comprised of nine Justices, three of whom are Jews and five of whom are Catholics, and I think Gorsuch is an Episcopal or something. None can doubt each of their nominations took those affiliations into consideration.
    I have no problems with Catholics serving as Judges. After all Sonia Sotomayor is one. But Catholics who believe the Catholic position means they should overturn Roe should be filibustered. They have every right to believe abortion is wrong but no right to impose that belief on others.

  • When someone accuses the highest court of regularly forgoing proper legal analysis for personal beliefs, they should support such claims. Too often such things are taken as an article of faith without forethought.

    I can think of only a few instances where such things happen. It is far rarer than what is claimed.

  • ”Such as…?”

    Lmao…What derelict planet do you live on?

    Liberal justices routinely distort the law to get results that favor their ideological biases. Gun control, abortion, same-sex marriage, immigration, free speech, taxes…you name it, some justice is giving their secular liberalism preference over the law. Take Obergefell, a fabricated right cut out of whole cloth based on a legal fiction with zero basis in the written law that gave us the 14th Amendment.

    Obama promised to fundamentally transform America. He did. In 2008, liberals controlled only one of the 13 US Court of Appeals. Today, they control nine. Obama’s legacy is that a radical majority of progressives now control the Appeals courts. They hear thousands of cases, most of which they are the last word. In the last three years, their judicial activism has resulted in rapid social upheaval and change.

    It isn’t that conservatives aren’t making precise, solid legal arguments in these courts, but that they face progressive ideologues on the bench who have an entrenched bigotry against the law when it violates their progressive feelings. Unable to win popular support for their agenda at the ballot box or by elected legislatures, the left has enjoyed wide success with imposing it through a progressive judiciary who couldn’t give a chite about rule-of-law…and if someone disagrees, well…its been predetermined they’re just Nazis, fascists, racists, etc, etc, etc. No reasonable, good faith argument will be accepted.

  • Actually, the article said that if a judge’s personal beliefs conflict with the law to the extent that he can’t carry out the law he should recuse himself. Despite the interpretations we’re seeing all over the place, it never says religious beliefs should supersede secular law.

  • Most nominees won’t say how they’ll rule on specific future cases. So senators look at past writings, and ask questions that’ll give some hints. Abortion is one big example. But if you can’t get the info you want without asking questions like, “Do you consider yourself an orthodox Catholic?” you need to turn the questioning over to someone else. It’s improperly intrusive, and no answer says anything about how the judge will rule on anything.

  • You are making assumptions and still not giving actual examples to support your view. In fact you are making precisely the kind of go-nowhere collateral attacks on SCOTUS that I stated people use when they lacked a decent legal argument on the merits.

    “Gun control, abortion, same-sex marriage, immigration, free speech,
    taxes…you name it, some justice is giving their secular liberalism
    preference over the law. ”

    Still no concrete examples here. Just a skewed POV based on what I can surmise as sour grapes thinking and a bit of willful ignorance on the part of conservative pundits.

    It is a given that conservatives moan about the judiciary and make claims of “judicial activism” because much of their social agenda really does run counter to notions of equal protection under the law. Plus it appeals to the more cretinous voter base which has little patience for reasoned arguments or evidence based support.

    “Take Obergefell, a fabricated right cut out of whole cloth based
    on a legal fiction with zero basis in the written law that gave us the
    14th Amendment.”

    Nothing within the decision supports your view. You make several fallacious assumptions concerning how SCOTUS has always operated and how our judicial system works.

    So what was the rational and secular basis for gay marriage bans? There weren’t any presented with any degree of credibility. So naturally the proponents of them failed to meet the burdens set up for longstanding interpretations of 14th Amendment equal protection clause. Nothing resembling personal convictions or overriding established law or legal thinking there.

    Obergfell came as the natural culmination of about 20 years of cases building upon it (Romer v. Evans, Lawrence v. Texas, US v. Windsor, Witt v. Department of the Air Force)

  • None of which is even REMOTELY related to this question.

    Sometimes I worry about you, Kanga. Do you see certain letters upside down or something?

  • Uh, no. The entire anecdote has everything to do with the issue at hand. It’s a true story about how these issue apply to real life. Of course without the personal attacks, your posting record would be zero, so, there ya go. Of course individuals with extreme beliefs like yours have difficulty comprehending metaphors and that distresses them, so they resort to personal attacks.

  • There are no metaphors here. Do you know what a metaphor is?

    And we are talking about FEDERAL constitutional law here.

  • ” So what was the rational and secular basis for gay marriage bans? There weren’t any presented with any degree of credibility. So naturally the proponents of them failed to meet the burdens set up for longstanding interpretations of 14th Amendment equal protection clause. Nothing resembling personal convictions or overriding established law or legal thinking there.

    You asked for a specific example and from the myriad of cases where liberal justices ruled in favor of their own political views instead of following the law, I gave you Obergefell. Your response was typical equivocation.

    Obergefell is a complete and unmitigated failure in the application of Constitutional law. It is a colossal disaster, and has foisted upon the nation a stark Constitutional crisis that will unfold in the years ahead. In fact, it isn’t merely bad law, or bad Constitutional law…it cannot be called soundly reasoned law at all thanks to the incompetence of Kennedy.

    I would throw the charge right back at you of making fallacious assumptions about how the Supreme Court or the judicial system works. It is supposed to work by umpiring the law as it was intentionally written by an elected legislative body, not by torturing the law, or ignoring it altogether to get to what the justice personally thinks it should be…law be damned. I favor the former, you clearly prefer the latter, but in your case…why even have a Constitution, or any law at all if it is merely a pretense to preserve the illusion that we are still a Constitutional Republic? We have a “written” Constitution, not an “evolving” one, and only by justices injecting their own ideological bias into their decisions do we get an “evolving” Constitution. Unfortunately, an evolving Constitution provides no fixed rights for anybody. Rights created can just as easily be dissolved. Your tendentious brand of jurisprudence is actually lawless and dangerous. We fought a revolution against the British crown for such a capricious and tyrannical mode of rule.

    Did those who ratified the 14th Amendment in 1868 ever intend that it be used to sanction same-sex marriage or understand it to require the states to change the definition of marriage? Not in this universe.

    Samuel Alito nailed it in his dissent in United States v. Windsor

    ”Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult ques-tion of constitutional law. The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue… it is well established that any “substantive” component to the Due Process Clause protects only “those fundamental rights and lib-erties which are, objectively, ‘deeply rooted in this Nation’s history and tradition… What Windsor and the United States seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges.”

    https://supreme.justia.com/cases/federal/us/570/12-307/dissent6.html

    As it is, you cannot ground a Constitutional right to same-sex-marriage in the 14th Amendment, which is why the decision was cobbled together with feckless reasoning from precedents with no basis in Constitutional law, but hey, who needs the Constitution or the law when you can dispense new rights like suckers at the bank teller’s window. We’ve committed national suicide and won’t know it until the corpse has long been dead.

  • A long winded rant which gives your opinion of how you want the courts to operate but not how they ever did in its 200+ years of judicial review. You never really answered my question. You gave nonsense half baked assumptions you couldn’t elaborate on.

    “Did those who ratified the 14th Amendment in 1868 ever intend that it be used to sanction same-sex marriage or understand it to require the states to change the definition of marriage? Not in this universe”

    Your ignorance about how our judiciary has always worked is duly noted and as noted before, a well rehearsed campaign against it. Legislative intent was never a determining factor in interpretation of laws/constitution. Judge made precedent always was the binding form of interpretation when a given conflict arose in the law. Your argument betrays an absolute ignorance of our legal system.

    “As it is, you cannot ground a Constitutional right to same-sex-marriage in the 14th Amendment”

    Of course I can. Especially given what happened with Obergfell.

    Marriage Equality wasn’t considered a given right for the entire nation until it was banned by statute in several states. Such a ban by its nature required justification which was both secular and rational in nature just to meet minimum standards under the 14th Amendment. The defendants could not justify the bans.

    What you clearly seem to be ignorant of is how equal protection interpretations are made. Laws banning a given action are evaluated by different levels of scrutiny depending on the type of action and the classes of people directly affected by them. At the very least they must have some rational basis.

    What passes for “rational basis” for gay marriage bans bordered on the nonsensical. They were really no more then empty appeals to tradition and warmed over bigotry.

    Alito’s take on Windsor was even more galling and a perfect example of the behavior you decried. An appeal to tradition rather than a substantive argument. New York had marriage equality voted in. A right created by its legislature. The issue was federal tax laws concerning inheritance. There was no compelling legal argument why the federal government had to ban recognition of gay marriage in tax laws.

    What it all comes down to is you are being a whinybaby about decisions whose results you don’t like. Rather than criticize the reasoning employed you engage in the more destructive and intellectually useless action of making collateral attacks on judicial power. Pretending that judicial precedent and interpretation was something new and recent and not something hardwired into the system for centuries.

  • It applies to ANY public office, exactly as the clause states. And it is impossible for voters to violate the religious test clause. Voters can support any candidate they wish for any reason they wish. The constitution restricts GOVERNMENT action.

    The nonsense beliefs about the constitution that can be found among the general public are mind-boggling. Like the one in five of Americans who think the 1st Amendment guarantees the right to own a pet. Truly frightening.

  • I guess making bold statements about the judiciary is far easier than trying to prove them.

    The whole line of reasoning of “The courts really didn’t have the power to do that” is based on both ignorance and a concerted campaign by people with no regard for things such as “equal protection under the law”, to attack the legitimacy of over 200+ years of Supreme Court power.

    But the reality is that you tend to see more contradictions, arbitrary concepts and hazy legal thinking coming from our conservative wing of SCOTUS than its counterpart. Case in point, Scalia’s reasoning in Smith v. Employment Division (religious belief did not grant exemptions to facially neutral laws) was ignored and reversed in his reasoning for Hobby Lobby. The man reversed himself for a given result. Your example with Kennedy is quite the opposite. For 20 years he was building upon the same reasoning and ideas from Romer v. Evans all the way to Obergfell.

    But the difference between us is that I don’t blame the system for bad decisions and I don’t seek to undermine judicial power and our system of checks and balances to get my way. Your line of reasoning is both childish and rather dangerous considering the judiciary is the last line of defense for the protection of personal liberties.

    Btw people who grouse about Obergfell to this day still can’t seem to defend their views on their own merits and facts in a rational and secular argument. The reasons given for gay marriage bans always smacked of bullcrap and bordered on the ridiculous. Mostly because the real reasons could not be articulated in court.

  • Truly noted. He certainly seems to live up to his moniker…benighted opinions that grow underground away from sunlight like a starchy tuber.

  • I will stipulate there are a significant minority of people who do not understand the specific provisions of the constitution, but the vast majority of these are firearms fetishists who believe the second amendment permits them to own cannons.

    I hadn’t heard about “the right to own a pet” as a thing, but, given how people love their dogs and cats, it’s not surprising. I’m not sure, however, how some can truly say this is a right that is violated on a routine basis. The areas where it might apply are landlord-tenant contracts, but, some are getting around that by having their pets designated as “service animals.” Then there are those municipalities which banned ownership of particular dog breeds deemed as “vicious,” primarily pit bulls. While such local legislation is incredibly stupid, I doubt there is a constitutional remedy to it.

    There are some who believe the United States is “a Christian Nation” and practitioners of other religions do not have the same rights as Christians. This occurs primarily in excluding non-Christian clergy from offering invocations at local government bodies’ sessions and farces like the hateful actions against the “Ground Zero Mosque” and the one in Murfeesboro, Tennessee.

  • I only see one, and it is not of any substantive importance but merely a figure of speech. Identify it and let’s see if you’re correct.

  • “Obama promised to fundamentally transform America. He did. In 2008, liberals controlled only one of the 13 US Court of Appeals. Today, they control nine…”
    That’s the best news I’ve heard all month, even though it’s old news. Thanks!

  • I’ve read some other stuff by Guiness and not been impressed. A book recommendation is no argument. The reviews on Amazon indicate “studies of democracies” suggest they tend to not last, which historically, is certainly true, but present day society is very much different from Ancient Rome, Hayden Edwards’ Freedonia, or even Robert A. Heinlein’s Coventry.” As my Western Civ prof Sydney Janak put it, “The Roman Empire fell for many reasons, but sexual promiscuity was not one of them.” If that is what Guiness is arguing he’s more full of beans than I had known.

  • Os Guinness is a cultural observer and social critic. In this book he makes the argument that Contemporary understandings of freedom are unsustainable because they undermine the very conditions needed for freedom to flourish. The ultimate threat to the American republic isn’t from external perils, but from internal rot.

    He doesn’t argue that “sexual promiscuity” is the reason for America’s troubles, its much larger than that. Although he does quote Marcus Tullius Cicero:

    “But our age, having received the Commonwealth as a finished picture of another century, but already beginning to fade through the lapse of years, has not only neglected to renew the colors of the original painting, but has not even cared to preserve it’s original form and prominent lineaments.

    For what remains of those antique manners, of which the poet said that our commonwealth consisted? They have now become obsolete and forgotten, that they are not only cultivated, but they are not even known…For it is owing to our vices, rather than to any accident, that we have retained the name of republic when we have long since lost the reality.”. -On the Republic

    So you’re not impressed with what you’ve read of Guinness? That’s interesting. He has an astute knowledge of classical history, and a keen perception into the ideas that shaped our Constitutional founding and how they relate to contemporary issues.

    You asked me a question and it just seemed easier to point you to a great book, in my opinion.

  • That sees fine. That sort of “National Suicide” would in part include the successful appeal of a strongman. It would not involve anything regarding sexuality per se.

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