Amy Barrett, a nominee for a judgeship on the 7th Circuit, has spoken often of her Catholic faith and drawn opposition from liberal groups, which argue that she'd place it above the law. Feinstein, the ranking Democrat on the Judiciary Committee, echoed those concerns Wednesday at a confirmation hearing, telling Barrett that “the dogma lives loudly within you, and that's of concern …”
Here is the full context of Feinstein's comments:
Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things. And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.
It's clear what Feinstein, a stalwart defender of abortion rights, is getting at here, given that her questioning of Barrett focused heavily on Barrett's views of Roe v. Wade. But her use of the word “dogma” has plenty on the right alleging that she's applying a religious test to Barrett's nomination.
It's a question that has come up intermittently over the years, often with Democratic senators questioning a GOP president's nominees. In June, Sanders railed against Russell Vought, a nominee to be deputy director of the Office of Management and Budget, for a 2016 article in which Vought called Muslim theology “deficient.” “They do not know God because they have rejected Jesus Christ his Son, and they stand condemned,” Vought wrote, rebutting a claim that someone could “know God” without being a Christian. At the Atlantic, Emma Green labeled this as “Bernie Sanders's Religious Test for Christians in Public Office.”
The Constitution, of course, prohibits religious tests, saying that " … no religious test shall ever be required as a qualification to any office or public trust under the United States.” Some on the right now say Feinstein is violating that, too.
The truth is murkier, experts say. When the Sanders case arose, some admitted that his comments may be problematic but that he was within his rights to oppose the nominee for what he believed to be bigotry. Even more than that, they said, there is no obvious legal recourse to punish a senator for such conduct.
Paul Horwitz, a law professor at the University of Alabama, said at the time that senators are “free to vote against a nominee for religious reasons, just as he or she is free to do so for other reasons, including racism or sexism. … It may be atrocious, but it's not unconstitutional.”
Horwitz added Thursday in a blog post:
Let us give a highly charitable reading to Feinstein's Yoda-like quote and assume that she means “dogma” as a term of art and without any intention of triggering the suspicion and hostility that the word seems to evoke for some unlettered individuals. …The question is still unhelpful enough that it ends up doing more to cast suspicion on Catholic nominees generally than to illuminate anything important about this nominee. What one might reasonably want to know is whether, when, and how often a judicial nominee might consider herself obliged to recuse in cases, for whatever reason. It is possible to ask that question in a way that explicitly mentions religion, but with great care and sensitivity and attention to the various relevant nuances, including an awareness that we are multiple and not single selves, that we negotiate the relationship between our beliefs and the world in a complicated way, and that how even believers in a “dogma” actually carry out their faith in a particular role is equally complicated. But history suggests it's hard to do that well, and that few senators are capable of it.
Of course, whether Feinstein and Sanders actually oppose the nominees because of their religion is open to interpretation. These disputes often boil down to the same thing: Christian judges believing their faith is the only way to God — as many Christians do — and that it should inform all aspects of their life — as many Christians do. The Democratic senators worry that this would inherently color the judges' decisions on issues such as abortion, even as the judges (as Barrett had Wednesday) pledge to faithfully apply the law and obey precedent. This also cropped up plenty during the George W. Bush administration.
Allan Vestal, a law professor at Drake University, sides with Feinstein. “Understood, Sen. Feinstein’s comments about the difference between law and religious dogma, and her question as to whether the nominee would follow the dictates of the law or religion were entirely appropriate,” he told The Washington Post in an email.
Larry Alexander, executive director of the Institute for Religion and Law at the University of San Diego, added: “I see nothing problematic in Feinstein's statement. It tells me what I already knew she thinks. She's afraid a committed Catholic will vote to overturn Roe. No news there.”
In a statement to The Post, Feinstein spokeswoman Ashley Schapitl stood by the senator's comments. “Professor Barrett has argued that a judge’s faith should affect how they approach certain cases. Based on this, Sen. Feinstein questioned her about whether she could separate her personal views from the law, particularly regarding women’s reproductive rights.”
Opponents have pointed to a couple of comments Barrett has made over the years, including telling Notre Dame graduates in 2006 that “your legal career is but a means to an end, and … that end is building the kingdom of God.” In 1998, Barrett said, “Judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.”
In the case of Sanders, his beef wasn't so much that Vought was a Christian, but that his particular version of Christian theology made him, in Sanders's view, a bigot. The problem, from Christians' standpoint, is that the view Vought expressed — that Christianity is the only way to God and that other religions don't lead to God — is hugely common. Barrett's views on Christianity and its role in her life will also be quite familiar to churchgoing Catholics — and evangelicals — across the country.
It's a debate that's unlikely to reach a satisfactory conclusion — either legally or politically — for either side anytime soon.