WASHINGTON, DC – SEPTEMBER 26: U.S. President Donald Trump (L) introduces 7th U.S. Circuit Court Judge Amy Coney Barrett as his nominee to the Supreme Court in the Rose Garden at the White House September 26, 2020 in Washington, DC. With 38 days until the election, Trump tapped Barrett to be his third Supreme Court nominee in just four years and to replace the late Associate Justice Ruth Bader Ginsburg, who will be buried at Arlington National Cemetery on Tuesday. (Photo by Chip Somodevilla/Getty Images)
Why would it be religious bigotry to ask Judge Amy Barrett about her religious commitments at her Supreme Court confirmation hearings?
After all, Barrett co-authored an essay in 1997 arguing that Catholic judges who felt a tension between the requirements of the law and the teachings of the Church in death penalty cases should recuse themselves because the public is entitled to impartial justice. So, why should defenders of abortion rights not ensure that any rulings she makes about abortion would also be impartial and not the result of conformance to Church dogma?
It might be bad politics to ask her, but why would it not be justified?
Asking whether a religious believer can follow the law is insulting to religious believers because the question is not premised on the conscience of the judge, but on an assumed obedience to the Church.
Barrett would not be asked how she can be fair when she personally feels that abortion is morally repugnant. She would be asked how she can be fair given the teachings of her church.
Religious believers are not treated as morally independent. Liberals assume that religious believers only obey and do not think.
That is the liberal prejudice against religion.
This is the same liberal prejudice that explains the weird interest in Barrett’s association with the Christian group People of Praise, which, some voices in the media darkly point out, teaches wives to be subservient to their husbands.
Since no one believes that Judge Barrett’s husband has been editing her judicial opinions or writing her earlier law review articles, you would have to say that the meaning of this Biblical injunction for Judge Barrett is nobody’s business.
Asking questions about Barrett’s religion is even insulting to secular liberals, but they do not see it.
As I pointed out in a 1988 essay on judicial resignation, when William Lloyd Garrison in the 1840’s called on anti-slavery judges to leave the bench rather than cooperate in a constitutional system complicit with slavery, he was not making what anyone at the time would have called a “religious” argument. He was speaking on behalf of fundamental human rights. He was pointing out the evil of slavery.
At the time, most white people, religious and non-religious, accepted slavery. Garrison’s attack on slavery was meant for all such people.
That is why the category I used in the essay to describe the tension some judges have with the death penalty and abortion was “conscience,” not religion. Garrison was issuing a call to conscience.
So, why should Barrett be questioned particularly about her religious commitments? Don’t secular nominees have consciences? Don’t their moral commitments occasionally come into conflict with existing law?
If we are worried that judges will not follow the law when they feel the law is evil, we need to ask that question of every judicial candidate, not just religious ones.
Putting the matter that way, however, reveals a deeper problem in our current understanding of law. Both liberals and conservatives, originalists and living constitutionalists, approach judging as if morality is irrelevant, or even a threat, to the law. It should be remembered that liberals first attacked now-Justice Clarence Thomas at his 1991 confirmation hearing over his commitment to natural law.
This nihilistic comportment would have shocked both the Rev. Dr. Martin Luther King, Jr., and the framers of the Constitution. The framers worried that they had left out rights from the protection of the written constitutional text and, in the Ninth Amendment, they commanded enforcement of such unwritten rights.
One of the reasons Ruth Bader Ginsburg was a great justice was because her experience with gender discrimination showed her its evil. Should she have recused herself in gender cases or been asked if she could be impartial?
Thomas feels he learned first-hand the harm that affirmative action can do. The experience so affected him that he opposes affirmative action even though it is probably constitutional from the originalist perspective Thomas usually utilizes. Does his moral commitment disqualify him from judging affirmative action cases?
Justice is not a side issue or a distraction from something called the law. It is the goal of the law.
That is why the phrase, “Equal Justice Under Law” is engraved on the Supreme Court building in Washington, D.C.
Barrett should not be criticized concerning her religious and moral commitments. She should be criticized over her lack of concern for justice.
A few weeks after her all-but-certain confirmation, Judge Barrett will participate in oral argument in the Supreme Court on the future of Obamacare.
If asked at her confirmation hearing, Barrett will surely assert that the prospect of depriving millions of people of health insurance and of the protection of pre-existing medical conditions against discrimination, will have no effect at all on her decision whether Obamacare is constitutional.
Under her approach to statutory interpretation, the harm her decision does is irrelevant. The law is the law, she would say.
That vaunted value-free judging, to which both the political left and right give assent, is a disgrace.
Judges cannot always decide cases in accordance with justice. But justice should always—always—exert a kind of gravitational pull on a judge, moving her, if possible, in its direction. The judge should, as King put it, bend toward justice.
We have forgotten that.
My great teacher Charles Black used to say that injustice in law usually reflects a failure of the legal imagination. There are generally ways for a judge to avoid injustice. Barrett should be asked not about her religion, but about her imagination.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.
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