President Donald Trump’s reported front-runner to replace Ruth Bader Ginsburg has reignited a long-running debate over whether religious judges can keep their faith separate from their rulings, and if that’s a valid litmus test for nominees.
Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit is a proud Catholic who’s been outspoken in speeches and writings about her strongly held religious beliefs and opposition to abortion. Her faith became a point for Democrats in attacking her nomination to the appellate court in 2017.
“It would have the likely effect of galvanizing Republican-leaning voters to turn out in November,” if it’s perceived that Democrats are attacking a nominee on religious grounds now, said Gregg Nunziata, a partner at Manatt, Phelps & Phillips LLP, and a former chief counsel for nominations on the Senate Judiciary Committee, who worked on Chief Justice John Roberts’ and Justice Samuel Alito’s confirmation hearings.
Faith & Law
Barrett, a former University of Notre Dame law professor, opposes abortion and has been criticized for co-authoring a 1998 law article that said “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty” and should sometimes recuse themselves from capital cases.
In written responses to Senate Judiciary Committee member Sen. Sheldon Whitehouse (D-R.I.) in 2017, Barrett said her writings recounted the Catholic Church’s teaching that “abortion . . . is always immoral,” but said her views on that would have no bearing on the discharge of her duties as a judge.
Sen. Dianne Feinstein (D-Calif.) made headlines when she told Barrett during those confirmation hearings “the dogma lives loudly within you and that’s of concern when it comes to big issues that large numbers of people have fought for for years in this country.”
Barrett has repeatedly rejected allegations that she ever suggested judges should decide cases based on a desire to reach a certain outcome.
“Whether someone is Catholic, or Jewish, or Evangelical, or Muslim or has no faith at all is irrelevant to the job of a judge and it’s unconstitutional to consider it a qualification for office,” she said last year, while speaking to the Washington campus of Hillsdale College. “Most people have moral convictions whether or not they come from faith.”
‘All Human Beings Have Beliefs’
Legal scholars who specialize on the intersection of religion and the law disagree on whether the beliefs of a judge play any role in their decision-making.
“All good judges—and, Barrett is a very good judge—do their best to decide legal questions based on the relevant legal rules and materials, and not on the basis of their own preferences,” said Richard Garnett, a law professor and director of the Program on Church, State & Society at the University of Notre Dame Law School, in an email.
“Since Barrett stated, repeatedly, during her hearings—and has written in published work—that all judges (religious or not) have an obligation to decide cases based on the law, and not on personal opinion or values, it strikes me that for Democrats to nevertheless suggest that there’s something problematic about her religious beliefs smacks of bigotry and prejudice,” he said. “All judges, last I checked, are human beings and all human beings have beliefs. It is a mistake to think that ‘religious judges’ are specially conflicted.”
Alliance Defending Freedom, a conservative legal advocacy group, said no federal public office holder should be screened, tested, or maligned for personal religious convictions.
“Judges can rule impartially despite religious backgrounds,” said Kristen Waggoner, the group’s general counsel. “An originalist judge, which are the judges that are being considered to be nominated here, understand and have a deep commitment to ensuring that they are applying the law, that they are not creating a law.”
The Constitution states no religious test shall ever be required as a qualification to any office or public trust.
Striking a Balance
Both Justices Louis Brandeis in 1916 and Felix Frankfurter in 1939 received some anti-Semitic tinged questions from the Senate during their confirmation hearings, queries about whether they could be loyal to the country, Nunziata said.
Catholic justices have also faced similar questions in the past. In 1957, at his Senate Judiciary Committee confirmation hearing, William Brennan was asked to explain how he would reconcile his duties as a judge with his faith.
“In everything I have ever done, in every office I have held in my life or that I shall ever do in the future, what shall control me is the oath that I took to support the Constitution and laws of the United States,” said Brennan, who served on the court for 34 years and rose to lead the court’s liberal wing.
“It’s difficult to strike this balance correctly, but it’s always fair to ask nominees if they’re capable of separating deeply held religious views from the law,” Nunziata said.
Barrett would be the sixth Catholic to join the current court alongside Chief Justice John Roberts, Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh. Justices Stephen Breyer and Elena Kagan are Jewish, while Justice Neil Gorsuch attended an Episcopal church when he lived in Boulder, Colo.
The question Democrats should be focused on is how Barrett would reconcile her moral beliefs when they conflict with constitutional and civil rights that protect others, said Nomi Stolzenberg, a law professor at University of Southern California Gould School of Law, who teaches law and religion.
“She is being selected to fulfill a half century campaign to take back the courts, to return religion to the public square, to dismantle a style of secularist constitutional interpretation that religious conservatives find objectionable,” Stolzenberg said.
“Folks on the opposite side are naturally going to greet her selection with great alarm for that reason.”