Saturday, July 7, 2018
Michael Sean Winters has re-upped his (partial) defense of the line of questioning to which (my friend and colleague) now-Judge Amy Barrett was subjected by several under-informed members of the Judiciary Committee last year. Barrett is, of course, an intelligent and accomplished lawyer, scholar, and teacher but Winters apparently now sees her (for reasons that are not provided) as the "face" of the "conservative Catholic legal establishment", an "establishment" that is "responsible" for the "deformation of the Church's public witness."
I'll pass over Winters's criticisms of Justice Scalia and what he takes to be "originalism" and leave it to others, such as our own Kevin Walsh, to provide a clarifying response (or perhaps just a reading list!). For now, just two things: First, Winters is, I believe, attacking a straw man when he suggests that those of us who were critical of Sen. Feinstein etc. objected to questions either about the law-review article she co-authored (about the obligations of Catholic judges in capital cases) or about her commitment, more generally, to decide cases in accord with the relevant law (rather than religious commitments, or anything else). As I (and others) have said before, such questions -- so long as they are not ignorant, so long as they are offered in good faith, and so long as they do not presume that Catholics are less able than anyone else to perform the judicial duty -- are fine. But, again, these are not the questions that were asked. The President of the University of Notre Dame, Fr. John Jenkins, had a better interpretation and evaluation of the business than the one Winters provides.
Next, Winters accuses me of an "intellectual sleight of hand" for writing this: "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)." Winters says:
The blog Mirror of Justice says it is dedicated to "the development of Catholic legal theory." Even if there were a Muslim or Sikh equivalent, there are not five Muslims on the Supreme Court and there are no Sikh-sponsored universities with laws schools as we Catholics proudly boast, so the comparison does not ring true.
I do not see the "sleight of hand" here and am not sure what relevance the fact that MOJ is dedicated to "the development of Catholic legal theory" has to the charge. Nor is it clear why the fact that there were five Catholics, and no Muslims, on the Court somehow undermines the point that "repetitive and badgering questions" of the kind asked by Sen. Feinstein et al. are inappropriate - whether directed at Catholics, Muslims, Sikhs, or anyone else.