Anti-Catholic Bigotry Returns to the Senate

Anti-Catholic Bigotry Returns to the Senate
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I wonder how Daniel Patrick Moynihan would have responded to the Catholic baiting employed by two of his onetime Senate Democratic colleagues last week. Moynihan, who served in office until 2001 – and died in 2003 -- noted that anti-Catholicism remains an “acceptable prejudice.” But even he would have been surprised by the sheer ugliness of the descent into anti-Catholicism exhibited by Sens. Dianne Feinstein and Dick Durbin last week.

It came while Moynihan’s former Democratic colleagues were interrogating Notre Dame Law School professor and appeals court nominee Amy Coney Barrett about her faith during last week’s Senate Judiciary Committee hearings. While ostensibly exploring the nominee’s judicial temperament, Feinstein instead targeted Barrett’s fealty to Catholic teaching. “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 years in this country.”

Durbin was even more direct in his roasting of Barrett’s faith. He took issue with the phrase “orthodox Catholic,” which Barrett used in a two-decades-old law review article, on the grounds that it somehow marginalizes politically liberal Catholics: “Do you consider yourself an orthodox Catholic?” Durbin asked her. 

What he was getting at, of course, was his own support for abortion, the dogma that lives loudly within almost all elected Democrats these days, and it was hardly made better by Durbin’s declaration that he was the product of 19 years of Catholic education. Feinstein put this bluntly. “You are controversial—let’s start with that,” California’s senior senator told Barrett at the outset of her questioning. “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.”Actually, Barrett has no history of any such thing. In response to Feinstein, she declined to discuss her personal view of Roe v. Wade, but said simply -- and under oath: “I would commit, if confirmed, to follow unflinchingly all Supreme Court precedent.”

That didn’t mollify her Democratic interrogators. Sen. Mazie Hirono peppered Barrett with similar questions. “You wrote about the duty of Catholic judges in capital cases,” the Hawaii lawmaker 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?”

The Democrats’ ambush wasn’t spontaneous. They were relying on a hit piece by the Alliance for Justice, a progressive group that amassed a dossier attacking Barrett. The AFJ report obsesses on a 1998 law review that Barrett, then a law student, co-authored with John H. Garvey, now the president of Catholic University.

Their article explores an intricate question of law and theology question: Should federal judges who are Catholic -- and who adhere to church teaching in opposition to capital punishment -- recuse themselves in federal death penalty cases? What followed was a nuanced exploration in which the authors eventually came to two conclusions: First, the dilemma they were writing about was actually pretty rare; second, when it came down to it, “judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.”

This conclusion should have satisfied even the most secular Democrat. Except that the Democrats assailing Ann Barrett’s integrity almost certainly didn’t read the original law review article. They read a progressive special interest group’s caricature of it, which explains their off-point and confused questioning. 

The upshot is that Democrats have taken to insinuating that a Catholic judge – at least one who takes his or her faith seriously – cannot to be trusted to follow the law over the tenets of his or her religion. 

Happily, some Judiciary Committee members saw the Catholic-baiting for what it was. Nebraska’s Ben Sasse is a non-lawyer but he is a scholar – a PhD in history. After asking Barrett about the Constitution’s religious test clause, he commented, “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.” 

Moreover, a faithful judge need not be a faithless judge. Catholic tradition from Saint Augustine to Saint Thomas Aquinas  to Saint Thomas More makes clear that “Catholics can be true to their faith and true to the law in our pluralistic democracy.” Those are the words of one of the giants of the federal bench – from the U.S. 9th Circuit Court of Appeals, which takes in Feinstein’s California, no less. That’s Judge Diarmuid O’Scannlain, who recently took senior status after serving on the court since 1986. Feinstein and Durbin – and many others – would do well to read his 2006 article in the St. Thomas Law Journal. Here’s one salient passage: 

“[A]s I understand what my faith tradition teaches me about jurisprudence, it amounts to the most unexciting and non-threatening jurisprudence one can imagine: one committed to the rule of law. The notion of the rule of law, rather than of judges, is nonthreatening in just the way that Alexander Hamilton suggested it ought to be when he called the judiciary the ‘least dangerous’ branch. … If we have the rule of law, rather than of judges, then the faith of the judge should not matter much. … Accepting a commission to the federal bench means agreeing to enforce the laws as they are, not as one would have them be.” 

Powerful, but no less so than the impressive Professor Amy Barrett’s reply to Durbin on the day of her recent, well, inquisition: “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.”

Ann Corkery is a lawyer in Washington, D.C., and a former delegate to U.N. Commission on the Status of Women.

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