Kopf: What If Seventh Circuit Nominee Professor Amy Coney Barrett Was An Ardent Atheist?

Professor Amy Coney Barrett, a most certainly qualified nominee[i] to the United States Court of Appeals for the Seventh Circuit and a law professor at Notre Dame, recently had her confirmation hearing.  The hearing resulted in quite a controversy.

The Professor, who clerked for Justice Scalia, was grilled by the ranking member of the Judiciary Committee (Senator Feinstein) and other Democrats about whether the nominee’s deeply held religious beliefs (Catholicism) might interfere with her job as a judge. It is fair to say that this inquiry (but perhaps not the tenor of it[ii]) was brought about by Barrett herself. See, for example, Amy Coney Barrett & John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1998).

Here is the conclusion of the article cited above taken from the current Notre Dame Law School website:

Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. 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. Perhaps their good example will have some effect. (Italics by Kopf.)

Now, please review a clip of a statement Senator Feinstein made to Professor Barrett about adherence to “dogma.” It is short, so please watch it, as it is central to what follows in this post.

Many thoughtful people[iii] argued that the grilling about Professor Barrett’s faith and related statements went too far. They were particularly incensed about Feinstein’s use of the word “dogma.” But, because I smell the stench of hypocrisy among the conservatives at National Review[iv], I am interested in flipping the scenario to see where that might lead the intellectually honest. But I need to set the stage.

First things first. Some may remember that I was accused (example here) of being anti-Catholic for statements I made in a post on Hercules. I have squarely addressed that silly but noxious lie before.[v] (So has our mean-ass host.) No further Gertruding is required.

Now, let’s go back to 2007. It was then that Christopher Hitchens’ best-seller, God Is Not Great: How Religion Poisons Everything, was published. It became a New York Times best-seller. The book is an attempted (and to my mind effective) evisceration of organized religion.

Hitchens, at the beginning of the book (page 4) makes his thoughts plain:

There still remain four irreducible objections to religious faith: that it wholly misrepresents the origins of man and the cosmos, that because of this original error it manages to combine the maximum of servility with the maximum of solipsism[vi], that it is both the result and the cause of dangerous sexual repression, and that it is ultimately grounded on wish-thinking.

So you get the flavor of the book, here are a few morsels using several chapter titles only: Chapter Two: Religion Kills; Chapter Three: A Short Digression on the Pig; or, Why Heaven Hates Ham; Chapter Seven: The Nightmare of the ‘Old’ Testament; Chapter Eight: The ‘New’ Testament Exceeds the Evil of the ‘Old’ One; and Chapter Nine: The Koran is Borrowed from Both Jewish and Christian Myths.”

Now, having set the stage, I can get to the thrust of this post. (Forgive me that it took so long.) Let us imagine another Christopher Hitchens, who is a law professor at a highly ranked law school, who clerked for a Supreme Court Justice, who is well-regarded by both liberal and conservative legal academics, and who is nominated by President X (insert Bernie Sanders if you wish).[vii] Assume also that Professor Hitchens had written, God Is Not Great: How Religion Poisons Everything.

Let us further imagine Professor Hitchens’ confirmation hearing.

STOP. “Wait a minute” you demand, while trying to wiggle out of the hypothetical. You argue that the hypothetical is inapt because in my hypothetical, Professor Hitchens expressed his views far more provocatively than Professor Barrett. But, don’t you see, the question is not the tone of the writing, but whether the nominee can set aside deeply felt non-legal beliefs while judging? Indeed, it would be ridiculous to assert that Barrett is less fervent in her beliefs than Hitchens was in his beliefs.

However, if you are still not convinced, then let’s pick another author, someone like the brilliant columnist George Will to serve as our hypothetical atheist law professor. See Jamie Weinstein, George Will: ‘I’m an amiable, low voltage atheist’, The Daily Caller (May 3, 2014).

Let us assume that George, the well-regarded law professor who clerked for Justice Ginsburg, has written about the desirability of having judges who are atheists:

As the number of Atheist Americans continues to rise—and rise at a greater rate than religions—the lack of Atheist persons serving on the judiciary is problematic. While religious affiliation may only affect decision-making to the same extent as other demographic factors, the non-inclusion of Atheists challenges the fairness of the judiciary. A judiciary that is not reflective of the general population excludes certain American perspectives and illegitimatizes the institution through implication that these perspectives are not valued. For a group traditionally and currently marginalized such as Atheists, the lack of inclusion also indicates that the doors to powerful decisions in government, including those that ensure justice, are closed to them. To remedy this problem, the inclusion of Atheists should be recognized as a diversity initiative. Organizations such as the American Bar Association can help to demonstrate why this inclusion is important and what can be done to promote this ideal.

Elizabeth C. Kingston, “In God We Trust”: The Lack of Atheist Representation on the Bench, 18 Rutgers Journal of Law & Religion 1, 32 (2016).[viii]

Now, we can get to the critical question without you, the reader, screwing with my hypothetical.

Do you believe for one minute that an atheist nominee would not be vigorously questioned about his “dogma” as it relates to such things as freedom of religion? If you think that my hypothetical atheist professor would escape a rabid attack on his dogma, you can probably get a writing gig at National Review.  Warning: If you seek that gig, you must be a true believer.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] She received a well-qualified rating from the ABA Standing Committee on the Federal Judiciary, although the vote was not unanimous. The other members of the Committee found the Professor qualified. See here.

[ii] Not to mention the lack of legal sophistication of the questioners.

[iii] For example, Professor Noah Feldman from Harvard wrote a piece entitled, “Feinstein’s Anti-Catholic Questions Are an Outrage.

[iv] See, e.g., here, here, here, and here.

[v] That said, I continue to believe that the 1999 movie Dogma was one of the funniest ever. In particular, George Carlin’s “Buddy Christ” scene (here) is satire at its best.

[vi]  Hitchens used the word “solipsism” to describe the following notion: The self is all that can be known to exist and therefore reasoning based upon empirically derived data is false.

[vii]  In my hypothetical, he is not a dissolute man about town, but rather a father of seven children, a non-smoker, and otherwise a paragon of virtue.

[viii] At pages 20 through 22, the author cites various studies showing that religion may matter when deciding cases. Two interesting examples are given. One study showed “Jewish judges tend to vote in favor of greater separation between church and state, while Catholics tend to vote in favor of state accommodation of religious exercise.” Id. at 21 (footnote omitted). Another study “found Catholic judges were more likely to decide in favor for injured persons and persons of lower economic status, as opposed to Protestant judges.” Id. (footnote omitted).

26 comments on “Kopf: What If Seventh Circuit Nominee Professor Amy Coney Barrett Was An Ardent Atheist?

  1. B. McLeod

    I would say that most of the people in the United States are really atheist, and to the extent there may be said to exist an atheist “dogma,” our courts have been steadily aligning the law with it for the last two decades, at least. If anyone mentioned a candidate’s atheism in committee, it would be for the same type of grandstanding in which Feinstein engaged.

      1. PseudonymousKid

        “most people in the United States are really atheist [agnostic]” That’s a whole lot of liars, then. Self-reporting still comes up majority religious in the U.S. as far as I know, and unless all the politicians are liars too, there aren’t very many agnostics or atheists among them.

        1. SHG

          “As far as I know” is the most convincing argument ever. But can we not dive down your rabbit hole on Judge Kopf’s post, please? Go outside the play.

          1. PseudonymousKid

            You don’t allow links. I respect that. Should I ctrl+c and ctrl+v the data here for you? Judge Kopf’s post, your house.

            This isn’t a rabbit hole this time. It’s on point. There aren’t any admitted atheists in Congress. Elections are the only polls that matter and everything else is masturbation. There’s no way an atheist law professor would escape the firing line. Atheism and politics don’t mix yet.

            1. SHG

              I could explain it to you, but it’s not my post and I try to keep my big agnostic Jewish nose out of other people’s posts. You be you. Carry on.

            2. PseudonymousKid

              Fine. At least it’s tangential and not a complete abandonment. Getting closer. Well, as close as you pointing out that you think that most people don’t know shit for the umpteenth time. This time you just called them lazy agnostics instead of straight up dummies. Not that they aren’t both.

            3. losingtrader

              When you were a kid, did your pet rabbits keep getting lost, and when found were always suffering from rectal bleeding?
              Or is this still a Greenfield family secret?

            4. D-Poll

              There is a theory, pseudo-kid, that a man’s true motives and beliefs are better elucidated by studying his actual actions than his cheap professions or protestations. Like evolution or nuclear physics, it’s only a theory.

            5. B. McLeod

              Indeed, as D-Poll says. This is also the reason I use the term “atheist” rather than “agnostic.” In Bill Cosby’s childhood story with the invisible snakes that scared him into staying in bed, Bill Cosby was the equivalent of an agnostic. He thought his father was lying about the snakes, but he wasn’t sure, so he stayed put. Just the uncertainty of the risk was enough to make him cautious.

              Americans by and large haven’t stayed put. There is no uncertainty. Look long and hard as you will, but you will not find anyone who acts in accordance with even a doubtful chance that an all-knowing and all-powerful being is watching. Professions and outward shows aside, we are a nation of atheists.

          2. wilbur

            “As far as I know” seems no less convincing than “I would say” or “I would think”.

            The May 3-7 2017 Gallup Poll 2017 found 24% of those polled said the Bible is the literal word of God and another 47% said it is the inspired word of God. Wilbur was not among those in the polling sample.

            But more to the point (I’m doing my best to fucking focus), anyone up for a Federal judgeship is going to be grilled by Senate opponents on anything they think may scuttle the nomination or at least show their base they’re fighting the fight. The virtue signals are sent on both sides of the aisle.

  2. JAV

    Judge Kopf,

    Yes, the grilling would be intense and noisy, but that appears to be the point of hearings, to be intense and noisy; dogs, ponies, etc. The intended audience (and most of the most of the committee, I guess) would either be bored by, or not understand, an academic discussion on judicial thinking.

  3. Richard Kopf

    Dear All (except SHG),

    I am about to rip my face off.

    This post is about right-wing hypocrisy among the supposedly legal elite at the National Review and, I suppose, the Federalist Society. For those of you who attended law school, have you forgotten the extreme hypotheticals of the Socratic method?


    Fucking focus.

    All the best.


  4. John Barlycorn.

    Makes a guy wonder if Edward Kennedy, Arlen Specter, and Robert Bork were able to get the happy hour rules changed in the  purgatory lounge when confirmation hearings are on CNN.

    In the meantine its not true that

    One part prune juice
    Two parts gin
    and a jigger of Feinstein’s hair spray (the 180 proff stuff she keeps in her desk, not the watered down stuff she keeps in her purse)

    will make the Warren Court go away even if there was a law mandating that John Roberts dress in his Eagle Scout uniform to throw out the first pitch at the little league world series every year, forever.

    So the answer to the hypothetical is of course they would  because it is  “conservative” to be hypocritical these days, no?

    But if an atheist is ever put on the rack, not when because it wil never happen when we are living,  rumor has it Fienstien has already agreed to share all her wares with Cruz in the green rooom. So there’s that anyway… If it makes you feel better.

  5. albeed

    Dear Judge:

    As Ephrat Livni wrote in May of this year:

    “US Supreme Court justices are secular clerics of the highest order. The Constitution is their guiding document—a set of basic commandments—and textual analysis is their practice, used to dissect thorny moral issues. All share a reverence for the law: It would be impossible to get the gig without a religious devotion to its rule.”

    As such, they are not significantly different from the high priests, rabbis and mullahs of the middle ages.
    Because of the severe intellectual limitations of people who practice law as if it were an infallible religion, placing the highest order of importance on precedent, it doesn’t make one bit of difference except in Senate dog & pony shows whether one is Catholic, Jewish or Atheistic. The many judicial decisions which go against the simple declarative language of the Constitution (wrt. individual “rights-whatever they are”), the disconnect from reality in support of many governmental agents (bad admission of forensics for example), etc. demonstrate rather emphatically who the federal justices really play up to, the government which pays their salary, healthcare and pensions.

    PS: The only way the Big Red will turn it around this year is if you start praying to a Higher Authority!

  6. j a higginbotham

    Perhaps the point got lost because because of the choice of an atheist as example.
    Presumably the left would badger a Catholic and the right would not.
    A good counter example would be someone the right would hound but the left would not.
    Unfortunately most everyone despises the atheist; polls reportedly show them trailing gays and rapists.
    A better choice would be a less universally reviled figure, mayhap a criminal defense lawyer.

  7. Steve UK

    Sounds like Hitchens meant “scepticism” rather than “solipsism”, though I haven’t read his book in context. I don’t think you’ll find true believers in solipsism within any public office, although I suppose they might still consider their vocation a worthwhile way of making their tiny universe more interesting while they exist.

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