Senators question Notre Dame Law professor about her faith

Senate Judiciary Committee Democrats questioned the relationship that the Catholic faith of nominee Amy Coney Barrett would have on her impartiality as a federal judge during her confirmation hearing on September 6, 2017.

In May, President Donald Trump nominated her for a position on the United States Court of Appeals for the seventh Circuit. Barrett is a constitutional law professor at Notre Dame Law School, where she has worked since 2002. She has prior judicial experience clerking for US Supreme Court Associate Justice Antonin Scalia and Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit.  

Prior to the hearing, Professor Barrett’s colleagues at Notre Dame’s law school expressed unreserved confidence that she was qualified and apt to serve as a federal judge. The law school’s entire faculty signed a letter endorsing her nomination, writing that “they have a wide range of political views, as well as commitments to different approaches and judicial methodology and judicial craft” but nonetheless unanimously agree that Barrett will “be an exceptional federal judge.”

As Senator Todd Young detailed in his introduction of Barrett, she was appointed by United State Supreme Court Chief Justice Roberts to the federal judiciary’s advisory committee on appellate rules,  selected by peers to chair the federal courts section of the American Association of Law Schools, was rated “well qualified” by the American Bar Association, and “unanimously endorsed” by her fellow Supreme Court law clerks.

Despite her extensive qualifications, Senator Dick Durbin (D-Illinois), Senator Dianne Feinstein (D-California), and other Democratic senators harshly criticized her, especially regarding her Catholic faith. Durbin, the senior senator from Illinois and the second highest ranking Senate Democrat as the Democratic Minority Whip, questioned Barrett’s faith, asking “do you consider yourself an ‘Orthodox Catholic?”  

Feinstein, the senior senator from California, persisted with the atypical line of questioning, stating “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.”

After Durbin and Feinstein’s questioning, multiple senators, including Senators Jeff Flake (R-Arizona) and Ben Sasse (R-Nebraska) used their statements to highlight how applying a religious test and lines of questioning regarding faith are impermissible. Senator Ben Sasse, a Republican from Nebraska, used his time to have Barrett explain “for non-experts what the religious test clause [of the US Constitution] is” and to state that “some of the questioning that [Barrett has been] subject to today seems to miss some of these fundamental constitutional protections.”

After the hearing, Durbin and Feinstein stood by their questioning, releasing statements that claimed their questions were justified and did not violate the religious test clause of the Constitution. Feinstein claimed “I have never and will never apply a religious litmus test to nominees,” continuing to say that she pursued the line of questioning because [Barrett] has no judicial experience so senators have had to rely on her writings and public statements to determine the type of judge she would be.”

In response to Senator Feinstein’s comments, University President Reverend John Jenkins, CSC, released a letter defending Barrett and her Catholic faith. In his letter, Fr. Jenkins focused primarily on Senator’s criticisms that “dogma lives loudly in [Professor Barrett].”

“I am one in whose heart ‘dogma lives loudly,’ as it has for centuries in the lives of many Americans, some of whom have given their lives in service to this nation,” wrote Fr. Jenkins, “Indeed, it lived loudly in the hearts of those who founded our nation as one where citizens could practice their faith freely and without apology.”

Fr. Jenkins continued to express a fear over the implications of Barrett’s hearing:“It is chilling to hear from a United States Senator that this [Catholic faith] might now disqualify someone from service as a federal judge.” In response, Fr. Jenkins asked that Senator Feinstein and her colleagues “respect those in whom ‘dogma lives loudly’—which is a condition we call faith.”

Fr. Jenkins was joined in his criticism of Senator Feinstein’s comments by Princeton University President Christopher L. Eisgruber, who wrote that he “believe[s] … that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s ‘no religious test’ clause.”

Eisgruber concluded his letter by stating that Barrett “and other nominees ought in any event to be evaluated on the basis of their professional ability and jurisprudential philosophy, not their religion,” and that Barrett is a capable nominee “who would serve this country honorably and well.”