Sunday, July 8, 2018
How to lose credibility by making a fair point in an unfair way, Michael Sean Winters on Amy Coney Barrett edition
Michael Sean Winters recently made a fair point in a snide and sloppy way. The end result was to illustrate a different point entirely.
The fair point-- better put here by Rick Garnett last fall--is that "it is not inappropriate for senators to question judicial nominees ... 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."
The point Winters actually illustrated, though, is that he cannot be trusted to fairly represent contemporary Catholic legal thought about American constitutional law.
Winters's post is a gallimaufry of ill-informed opinion about legal matters, en passant slimes of people and groups, and intramural Catholic posturing. It does not proceed analytically, but moves on to another point before it finishes developing the argument for a particular assertion. And sometimes there is no argument to be found. In what follows, I address two of Winters's main points as I can best reconstruct them and then explain why the framework he uses is unfortunate.
My two main points in response to Winters are (1) that Barrett's religious affiliation does not put the burden on her to counter a presumption that she lacks independence, and (2) that Winters does not understand originalism and textualism very well. As to the framework, it is regrettable that Winters uses Barrett's potential nomination principally as a vehicle for Catholic intellectual infighting.
1. Membership in People of Praise is not prima facie evidence of a lack of sufficient judicial independence.
In discussing how others have covered Barrett's membership in People of Praise, Winters writes that "it would be irresponsible not to ask questions about the independence we want in a judge, independence that membership in this group would seem to preclude." Take a look at that last clause. A fair reading is that Winters believes "membership in [People of Praise] would seem to preclude" Barrett's possession of "the independence we want in a judge."
This charge is very serious. Yet Winters offers precious little argument or evidence in support. It would be helpful to know if he actually believes it.
Winters offers no reason to think that People of Praise's distinctive beliefs and practices include distinctive beliefs about how Catholic faith informs one's performance of the judicial role. Indeed, Barrett's co-authored article on this issue written twenty years ago is a model of engagement with the Catholic intellectual tradition on this topic. (Incidentally, that article is about cooperation with evil in the death penalty context, not what Winters dismissively describes elsewhere in his post as "issues of pelvic theology.")
The most charitable reading may be that Winters was just being careless here. Perhaps he was making the narrower point that it's reasonable to inquire into the beliefs and practices of a religious group to which a nominee belongs.
A clue that this may be so comes in his first-person declaration: "I am not sure how similar Barrett's life is to 'millions upon millions' of her fellow Catholics: Some of what I know about the 'People of Praise' gives me the willies." This reminded me of Senator Feinstein's "very uncomfortable feeling" about Barrett (and Winters's scare quotes are a nice touch). Feinstein knows many Catholics, like her colleagues Richard Durbin and Tim Kaine, and she seems totally comfortable with them. Barrett, though, seemed different.
Nobody should have a problem with asking a nominee questions about her understanding of the relationship between her religious beliefs and practices and her judicial role. But it's much more of a problem--deplorable, one might say--for Winters to justify those questions by reference to his (or anyone else's) "willies."
2. Originalism and textualism are not "a kind of textual idolatry akin to Martin Luther's sola scriptura approach to the Christian faith, [or] a fundamentalist hermeneutic akin to the Rev. Jerry Falwell's understanding of how to interpret the Bible."
Winters is woefully underinformed about originalism and textualism. The principal merit of his hyperlinked source for defining originalism--a poorly sourced aggregation of content I've never heard of before--is that it may have shown up high in search engine results. I cannot get back into that source without registering, but I can at least report that Wikipedia's entry on originalism is much better.
Wikipedia, too, has its limits, of course. And there are deep theoretical debates about originalism, including arguments about just how representative of originalism Justice Scalia's constitutional law corpus may be. But Winters's assertion that "Scalia's theory has not even a passing similarity with our Catholic intellectual traditions" is easily falsifiable. For readings on the relationship between the Catholic intellectual tradition and originalism, I recommend Lee Strang, Originalism and the Aristotelian Tradition: Virtue's Home in Originalism, and my co-authored piece with Jeff Pojanowski, Enduring Originalism. Even better for those on a tighter time budget is Pojanowski's 7-pager, Why Should Anyone Be An Originalist? (Short answer: Because it's a practically reasonable way of achieving the kind of benefits that the positive law of a written Constitution offers.)
Strang, Pojanowski, and I are admittedly just a few legal scholars trotting out teleological reasoning in theoretical arguments about originalism's jurisprudential foundations. But as far as I'm aware, nobody has taken issue with the claim Pojanowski and I have made that "[f]ar from being a musty, sectarian artifact, the classical natural law tradition of reasoning about positive law’s moral purpose animated the framers’ understanding of our Constitution." The dispute, instead, is instead largely about whether that tradition "provides the most persuasive reason for continued adherence to that original law today."
And contrary to the impression conveyed by Winters (in which Scalia seized on originalism to combat "Blackmun's [sic] penumbras"), neither originalism nor textualism has a necessarily conservative or Catholic inflection. If any particular camp is ascendant in originalist legal theory today, it is probably the libertarians'.
There's much more I could say on these points. But better to save serious analysis for someone who first makes a serious effort to understand what he's trying to take on.
3. Winters's beef is much more with "the conservative Catholic legal establishment" than with Barrett herself.
When I studied for my Theology M.A. at Notre Dame two decades ago, most of my classes were in the Theology Department. But I also participated some in the intellectual life of the law school and took John Finnis's class on Aquinas there.
It was hard back then not to miss two big divides.
One was in the theology department itself, with respect to American Catholicism. Roughly speaking, this was a divide typified by Michael Baxter on the one hand and Richard McBrien on the other.
A second divide was between moral theologians in the theology department and people involved with the legal aspects of some of these issues in the law school. The divide was not neat, for I learned a lot about the intersection of morality and politics not only from Finnis but also, and more so with respect to American constitutional law specifically, from Cathy Kaveny (now at BC).
I mention these biographical notes because they shape the personal perspective I bring to Winters's post, which includes an awareness of the various fissures and tensions among Catholic intellectuals addressing the role of Catholics in American public life.
When understood as the latest volley in an ongoing intra-Catholic skirmish, one can understand why such skirmishing is so regrettable. Barrett is made to bear the brunt of attacks that ought to be aimed elsewhere.
And some of it is downright offensive. Consider, for instance, Winters's discussion of how Barrett "is a product of, and has been groomed by, the conservative Catholic legal establishment." Sure. When she hit it out of the park academically as a law student at Notre Dame, that was just her being groomed. Her impressive scholarship? Grooming also.
"Having been groomed" by the "conservative Catholic legal establishment," Winters writes, Barrett is "now the face of that establishment." It's too bad that's the way Winters sees it and wants others to see it.
Too bad is how I see it, anyway. And I bet I'm not far removed in this regard from the Catholic outlook that informs Persons and Masks of the Law.
Shouldn't we try instead to see Amy Coney Barrett's as the face of a real person with a history, intellect, and will of her own?