Should a Judge's Nomination Be Derailed by Her Faith?

Dianne Feinstein sat alongside other senators at a hearing on Wednesday and questioned two federal appellate-court nominees. She was particularly anxious about Amy Coney Barrett, a law professor at Notre Dame: Feinstein was not convinced that Barrett would uphold Roe v. Wade given her traditional Catholic beliefs.

“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.”

While recent Senate hearings have skirted the boundary of posing religious tests for public servants, raising constitutional questions, something more complicated seemed to be going on here. Sheldon Whitehouse, the Democratic senator from Rhode Island, expressed frustration that Barrett and her fellow nominee at the hearing, Michigan Supreme Court Justice Joan Larsen, refused to discuss how their personal beliefs might shape their legal thinking. He and the other Democratic senators seemed to believe that religious convictions affect how judges apply the law. “To sit here and pretend that there is no role for people’s personal and private views … when they go to the court—it’s just, it’s so preposterous as to be silly,” Whitehouse said.

As conservative, often religiously motivated positions on issues like gay marriage and banning abortion increasingly become out of step with popular opinion and legal precedent, this boundary between personal conviction and legal fidelity is going to become even tricker to navigate. What’s the line between examining a nominee’s religious convictions and believing those convictions disqualify her from serving the country?

Democratic senators cited a number of concerns with Barrett’s past statements and writings. But by far, they spent most of their time questioning a 1998 paper Barrett wrote as a law student along with John Garvey, who is now president of the Catholic University of America.

In the paper, the two authors explore whether a Catholic judge should recuse herself from death-penalty cases if she would be unable to impartially uphold the law because of her religious convictions. “The pope and the American bishops have recently offered clear and forceful denunciations” of the punishment, they reason, and many Catholics feel morally obligated to uphold the teachings of the Church. In certain, limited circumstances, they argue, federal judges should step back from involvement in cases that might raise conflicts of conscience.

They did not, however, argue that judges should step back from morally complicated cases all, or even most, of the time. “It turns out that the number of cases in which we thought an adherence to your moral principles would prevent you from deciding a case according to the law was much smaller than we imagined,” said Garvey in an interview.

In those rare cases when law and conscience do conflict, Barrett and Garvey argued in the paper, the most important thing is that “judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.” Although some might be tempted “cheat,” as they put it—“to take charge of sentencing hearings and manipulate the law and evidence in order to save lives”—that betrays public trust. Occasionally, the federal recusal statute can help judges to avoid interfering with the law while still “[conforming] their own behavior to the Church’s standard.” Perhaps, they write, “their good example will have some effect.”

The Democrats on the Senate Judiciary Committee seemed to read the paper in the opposite way, saying that a judge’s religious beliefs should trump the law.

“You are controversial. Let’s start with that,” Feinstein said during the hearing. “You’re controversial because many of us who have lived our lives as women really recognize the value of finally being able to control our reproductive systems, and Roe entered into that, obviously. … You have a long history of believing that your religious beliefs should prevail.”

Barrett said she thought it prudent to refrain from commenting on her personal beliefs about Roe. “I would commit, if confirmed, to follow unflinchingly all Supreme Court precedent,” she said. “I would not want to leave the impression that I would give some precedents more weight than others because of some sort of academic disagreement.”

When it was her turn to question Barrett, Senator Mazie Hirono of Hawaii took up the question again. “You wrote about the duty of Catholic judges in capital cases,” she said. “In spite of the fact that you had written in an earlier article that Catholic judges—and you would be a Catholic judge—you would not recuse yourself from death-penalty cases?”

Barrett pointed out that when she clerked for Antonin Scalia, she dealt with a number of death-penalty cases and did not recuse herself from dealing with those. There’s no general class of cases she feels she would need to recuse herself from, she said, but her article also didn’t actually say that Catholic judges should recuse themselves from all or most death-penalty cases.

Hirono didn’t buy it. “Ms. Barrett, I think your article is very plain in your perspective about the role of religion for judges,” the senator said. “It seems to me that your testimony today is at variance with your earlier writings.”

While she wouldn’t write it the same way again, Barrett said, “I continue to subscribe to the core argument of that article, which is that a judge may never subvert the law or twist it in any way to match the judge’s convictions.”

Hirono didn’t budge. “It was enough of a statement of what you believe the role of religion was that it certainly caught my attention,” she said, “because I thought that justice was supposed to be blind.”

Hirono’s comments highlight the peril of this line of questioning. She and other Democratic senators on the committee seemed troubled by Barrett’s Catholic convictions, particularly on the issues of abortion and same-sex marriage, which came up later during questioning. But when Barrett repeatedly stated that she would uphold the law, regardless of her personal beliefs, they didn’t seem to believe her.“Why is it that so many of us on this side have this very uncomfortable feeling?” Feinstein asked toward the end of the hearing. “Dogma and law are two different things. I think whatever a religion is, it has its own dogma. The law is totally different.”

The line between personal conviction and legal thinking has never been clear in the American justice system. Many judges are religious, and the Constitution protects their right to be so. As Garvey and Barrett wrote in their paper all those years ago, “It seems plainly inconsistent … to suggest that Catholics, simply by virtue of being Catholics, are disqualified from serving as judges.” Five of the nine justices currently serving on the Supreme Court are Catholics. Almost certainly, their religious convictions shape the way they think, but that’s not necessarily a bad thing. In our interview, Garvey quoted the late Justice William Rehnquist on this question: “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa would be evidence of lack of qualification, not lack of bias.”

Two factors complicate the navigation of this line between ideology and faithfulness to the law. As Whitehouse pointed out, federal judicial hearings have become almost game-like, with nominees obstinately refusing to articulate their personal views:

We sit here in this bizarre-o world in which we’re asked to pretend that nominees’ personal views and social views have no role, and we shouldn’t discuss them at all, and we’re all just going to sit around following precedent ... The protocol for answering questions that has developed in this committee makes the committee look preposterous. It makes the nominees look preposterous. We have got to get beyond this if we’re going to have meaningful hearings and not just verbal jousting and gamesmanship.

Senators have a legitimate interest in obtaining information about judicial nominees. The Constitution requires them to give “advice and consent” on potential judges. If nominees are unwilling to answer questions about their personal ideology, they arguably obstruct the Senate’s ability to perform that constitutional duty.

And yet, certain ideological areas are particularly charged. It’s no coincidence that abortion and LGBT rights were the two issue areas Barrett was questioned about most fiercely. As legal precedent moves farther away from traditional Catholic and Christian teachings on these questions, it may be harder to tell whether a senator is questioning a nominee about her legal views or questioning her faith.

Ultimately, this is an issue of red lines. Should particular beliefs, including deep religious convictions, disqualify a nominee from serving on the federal bench, even if they promise to set those convictions aside?

“Certainly, a religious nominee is not entitled to say, ‘You can’t ask about this conviction because my faith played a role in forming it,’” said Garvey. But “we don’t want to disqualify good people just because they have come by good principles through their faith. That would make for a much worse system of government.”