Wednesday, September 20, 2017
During the last few weeks, a number of (very) prominent scholars and academic figures -- Fr. John Jenkins, Chris Eisgruber, William Galston, Lawrence Tribe, Noah Feldman, etc. -- have forcefully demonstrated that several senators crossed the line, during the recent hearings in the Senate's Judiciary Committee, when questioning (my colleague) Prof. Amy Barrett, who has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit. A few legal scholars have stepped up to defend the senators -- including Geoffrey Stone, Eric Segall, and Erwin Chemerinsky -- but (as others have shown in great detail) these defenses have rested entirely on incomplete or inaccurate accounts of what the senators actually said.
More surprising, and disappointing, than these scholars' defenses have been the reactions of some Catholic commentators, including Michael Sean Winters, of Distinctly Catholic, and the editors at Commonweal. [UPDATE: What I say below applies also to Cathy Kaveny's Washington Post op-ed, defending Feinstein's questioning.] In my view, these reactions reflect a failure to engage directly with what actually happened at the hearing. Read the linked-to pieces for yourself. Then, consider these thoughts of mine, for what they are worth:
- (1) It was not inappropriate, and it is not inappropriate, for senators to question judicial nominees (Catholic or not -- if they ask only Catholics, that's a problem!) about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role. It is also appropriate to ask a nominee about his or her scholarly work, including work regarding the relationship between a judge's faith and his or her judicial obligations. This kind of questioning does not violate the "No Religious Tests" Clause of the Constitution.
- (2) It is inappropriate (or worse, it is embarrassing) for senators to rely on activist groups' willful misrepresentations of a nominee's (20 year old, co-authored) law-review article as the basis for repeated (as in, over and over and over . . . ) charges regarding the nominee's views. In Barrett's case, multiple senators -- again, clearly relying on interest groups' talking points -- accused the nominee of saying X when, in fact, she had said not-X. This questioning persisted even after Barrett corrected the misunderstanding/misrepresentation.
- (3) Some senators' questions were merely tedious and uninformed (e.g., those of Sen. Hirono) or grandstanding and nasty (e.g., those of Sen. Franken). The questions of Sen. Durbin and (in her second round) Sen. Feinstein, however, were different. Contrary to the suggestions of the authors mentioned above, these senators did not limit themselves to appropriate questions -- the kind that could be asked of any nominee, not only a Catholic one -- about the relationship between a judge's faith and her judicial work and obligations. Rather, Sen. Feinstein said this:
Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and 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 is of concern when you come to big issues that large numbers of people have fought for for years in this country.
This is not an appropriate question. (Nor was Sen. Durbin's "are you an orthodox Catholic?") This is reminiscent of Know-Nothing and Blanshardian anti-Catholicism. It's what was done to Al Smith and John F. Kennedy. Although Barrett had repeatedly, clearly, and unequivocally provided the correct and reasonably expected answer -- e.g., it is not the role of an Article III federal judge to substitute his or her religious commitments for the positive law when deciding cases -- Sen. Feinstein said (my words, not hers) "I don't believe you, because of what I've heard about your faith commitments." Sen. Feinstein's critics are right; her defenders are wrong. The senators would not have asked -- and the senators' defenders would not have tolerated -- repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they). The double-standard here -- to quote Sen. Feinstein -- "[speaks] loudly."