I hired the future judge as my research assistant. It was in that capacity that she co-wrote with me a 1998 Marquette Law Review article on Catholic judges and the death penalty — the article that stirred controversy during the confirmation hearing for her current position on the U.S. Court of Appeals for the 7th Circuit in September 2017.
That article, for the record, made an argument almost exactly opposite to what Barrett's critics claimed. We argued that recusal would be the appropriate course of action for a Catholic judge who felt that his or her religious beliefs were in conflict with upholding the law.
It would hardly be reasonable to hold Barrett responsible for everything we said back then, when she was still a law student and the junior partner in the endeavor. But we made a perfectly sensible case — one that is in fact recommended by the federal recusal statute.
After she graduated from law school, I wrote a one-line letter of recommendation for her to Justice Antonin Scalia: “Amy Coney is the best student I ever had.” He was wise to hire her as a clerk.
When she was nominated to be a judge on the 7th Circuit, every law clerk who had served with her at the Supreme Court, including Justice Ruth Bader Ginsburg’s clerks, supported her nomination. “This view is unanimous,” they said: She “is a woman of remarkable intellect and character.”
I would be astonished if anyone were to oppose her nomination on the basis of character or intellect. Anxiety about her confirmation instead seems driven by the fear that her religious belief is somehow incompatible with the impartiality demanded of a judge. Some have tried to attach a sinister significance to her association with the People of Praise, an ecumenical Christian organization started by Notre Dame students in the 1970s. People of Praise is part of the charismatic renewal movement, focused on community, fellowship and the gifts of the Holy Spirit. Pope Francis has referred to the various groups in this movement as “a current of grace in the Church and for the Church.”
In an attempt to capture the public imagination, Barrett’s detractors have tried to associate the People of Praise with the regime depicted in the dystopian novel “The Handmaid’s Tale.” Women there are condemned to submissive gender roles that permit them no rights or opinions of their own. It’s impossible to maintain such a fantasy with Barrett. Her husband — I taught him, too — is a wonderful man and a remarkably able lawyer, as was Ginsburg’s husband. No one who knew either couple would suppose that the woman needed instruction on how to think.
People of Praise members participate in weekly prayer and community meetings and work for the poor in places such as Barrett’s native Louisiana. Decades ago, they started one of the best high schools in Indiana. (Full disclosure: Two of my grandsons are students there.) It has been a model of classical education for schools across the country, from Virginia to Montana. Barrett has served on the board.
The organization’s fidelity to traditional Christian teachings rubs some lawmakers the wrong way. This is not a uniquely modern aversion. The English Test Act and Corporation Act used to require people seeking government office to prove that they did not believe in the Catholic doctrine of transubstantiation — the idea that the bread and wine of Communion become the body and blood of Christ.
But the only thing our Constitution said on the subject of religion — before the First Amendment was added — was that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” That has, for more than two centuries, been a guarantee of a tolerant pluralism in our country. The Constitution invites Catholics, evangelicals, Mormons, Jews, Muslims and nonbelievers alike to serve their country, and promises them that they won’t be interrogated about the way they choose to love and serve God.
As a law professor, dean and college president invested in Catholics’ continued service to America, I hope Barrett’s critics will observe this part of our original understanding.