Wednesday, November 1, 2017
Yesterday, my friend and colleague, Prof. Amy Coney Barrett, was confirmed to the United States Court of Appeals for the Seventh Circuit. I was pleased that a few Democratic senators -- including two Catholics, my own Senator Joe Donnelly and also Virginia's Tim Kaine -- supported her confirmation, as did hundreds of students, scholars, colleagues, and co-clerks.
Prof. Barrett's record was glaringly distorted and misrepresented by interest groups. The "Alliance for Justice" behaved particularly badly, and dishonestly. Several of the senators who questioned her during her hearings also acquitted themselves, to put it mildly, poorly. She was subjected to a particularly low and Dan-Brown-esque (and also factually inaccurate) piece in the New York Times, about her association with the People of Praise, written by a journalist who should have known better. There is no doubt that, in some quarters, the fact that Barrett is a practicing Catholic, who has been public about the Faith's importance to her and who has reflected thoughtfully on its implications for her professional life, was a motivating factor for opposition, criticism, and attacks. To their great credit, many who do not share Barrett's jurisprudential views, and do not (at all) support this President -- for example, Noah Feldman and Chris Eisgruber -- spoke out clearly and powerfully against the inappropriate attacks.
To be sure, these facts do not establish, technically speaking, a violation of the Constitution's ban on religious tests for federal office. In addition, it is not the case (contrary to what was said by those who persisted in defending Barrett's attackers) that to criticize the tactics of those who opposed Barrett's nomination is to say that a judge's "personal views" are never relevant to her judicial work or to senators' decisions about whether to vote to confirm.
The judicial-confirmation process has been in bad shape, at least since Robert Bork's failed nomination, for a long time; I believe the deterioration accelerated after 2000 and is now perhaps as bad as it has ever been. However, I suppose it would be strange if, in the midst of a larger politics that seems to be failing in many ways, our judicial-confirmation process were civil, healthy, and honest. St. Thomas More, patron of lawyers and statesmen, pray for us!