Trump judicial nominee faces the ‘dogma’ brigade
Democratic senators buy into a shameless distortion of a conservative law professor's views.
At first glance, Senator Dianne Feinstein’s criticism of Amy Coney Barrett, a nominee to the U.S. Court of Appeals for the Seventh Circuit, sounds like a nasty swipe at the prospective judge’s Catholic faith. “Dogma lives loudly within you,” Feinstein said, even though Barrett had earlier averred that “it is never appropriate for a judge to apply their personal convictions, whether it derives from faith or personal conviction.”
On second glance, Feinstein might seem to have a point. The Alliance for Justice, a group dedicated to stopping conservative judicial nominees and helping progressive ones, has issued a report on Barrett that purports to document that she is a conservative extremist who would bend the law to coincide with her religious views. That report seems to have influenced Democratic Senators Dick Durbin and Mazie Hirono, too, judging from their questioning of Barrett at her confirmation hearing this week.
But then you read the report, check out its evidence, and conclude that the campaign against Barrett is a hack job.
The Alliance for Justice report starts its indictment of Barrett, a law professor at the University of Notre Dame, by saying that the nominee “has suggested that the administrative state is unconstitutional and the Fourteenth Amendment is illegitimate.” It cites a law review article Barrett co-wrote with John Copeland Nagle last year, which says … something different.
The authors were discussing objections to originalism — the idea that legal texts including the Constitution should be read in light of the meaning they were understood to have at the time they became law. One of those objections, they noted, was that originalism rendered the 14th Amendment illegitimate. The first footnote in the paper states that the authors are using examples of arguments that have been raised, without commenting on their validity.
But it’s another portion of the alliance’s report that Barrett’s critics have seized on:
Barrett has explicitly argued that federal judges’ personal religious beliefs override their duty to apply the law. Given that Barrett believes that “life begins at conception” and her statements opposing Roe [v. Wade], questions arise as to whether she will properly enforce Roe and its progeny. Indeed, Barrett herself has strongly implied that she would not [emphasis in original].
The first sentence of this criticism is a distortion of what Barrett has written about the death penalty. In a 1998 article with John Garvey, she argued that a judge who agrees with the two of them that the death penalty is immoral must recuse herself from certain types of cases involving the death penalty. She does not say that she may substitute her own conviction for the public’s.
She does not say, and indeed the authors deny, that a judge’s opposition to the death penalty justifies her striking it down as unconstitutional. They deny even that the judge may put a thumb on the scale against the death penalty in particular cases. The judge can’t decide to impose a lesser sentence when capital punishment is on the table; she has to recuse.
The questions Barrett and Garvey consider have occupied other distinguished jurists (Justice Antonin Scalia, for whom Barrett clerked, thought that judges who object to the death penalty were obligated to resign). Their argument is thoughtful and nuanced, if also disputable. I myself do not agree with all of the lines they draw.
But Barrett has raised no question about whether the law should be followed. And even the question she has raised has different implications for abortion than for the death penalty.
She does not suggest that a judge has to recuse herself from interpreting what the Constitution says about the death penalty; she has to recuse herself only from actually participating in an execution. Cases involving abortion law in the courts are almost always about what the law is: what the Constitution says, and what court precedents say.
If a challenge to an anti-abortion law came before the Seventh Circuit, Barrett could rule that the Supreme Court’s precedents put severe limits on such laws and that those precedents govern all lower courts. The report supplies no evidence at all that Barrett would have any problem making that ruling.
One might well guess that Barrett, given her approach to constitutional issues generally, thinks Roe v. Wade was wrongly decided. That would put her in the company of many people, including some academics who favor legal abortion, who do not believe the decision has any grounding in the Constitution. 1
Note, though, that not even the Alliance for Justice alleges that Barrett would ban abortion from the bench. They cannot even find words of hers to twist to make that case. What she appears to want is to let abortion policy be set democratically, whether or not the results would be those she favors.
Senator Feinstein disagrees. She wants the courts to keep enforcing a right to abortion that is hard to detect in the Constitution. And while Barrett, even if confirmed, will not be able to change the Supreme Court’s jurisprudence on the subject, she nonetheless poses a tiny and indirect threat to it. Feinstein may seem to be overreacting. But that is how people often respond when their cherished dogmas are at stake.
As critical as I was of the Alliance for Justice’s report on Barrett, I was not critical enough. I originally wrote that the alliance is on solid ground in calling her an opponent of Roe v. Wade. It turns out that here, too, the alliance is distorting Barrett’s words. According to the report, “she has stated that the Supreme Court ‘creat[ed] through judicial fiat a framework of abortion on demand’ that ‘ignited a national controversy.’”
The alliance’s footnote takes you to an article that makes it clear that the comment about “judicial fiat” and “abortion on demand” is not a direct quote from Barrett; the words are the reporter’s. The alliance provides no direct evidence, that is, that Barrett is even a critic of Roe.
The American Enterprise Institute for Public Policy Research (AEI) is a nonpartisan, nonprofit, 501(c)(3) educational organization and does not take institutional positions on any issues. The views expressed here are those of the author.