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.”
[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).