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Feinstein, a Catholic nominee and a dogma that didn't bark

Is Sen. Dianne Feinstein an anti-Catholic bigot? Did she violate the spirit if not the letter of the Constitution’s ban on a “religious test” for public office when she worried this week that a Catholic nominee for a federal appeals court might be unduly influenced by her religious beliefs because, as she told the nominee, “the dogma lives loudly within you.”

Feinstein’s comments at a hearing Wednesday of the Senate Judiciary Committee were directed to Notre Dame law professor Amy Coney Barrett, President Trump’s nominee to the U.S. 7th Circuit Court of Appeals (and, as some noted, a mother of seven). The response on Twitter was immediate and righteously indignant.

“Bigotry pure and simple” tweeted USA Today columnist Kirsten Powers. “Out of bounds” declared Sohrab Ahmari, a writer for Commentary who asked: “Would she say so to a Muslim judicial nominee?” “Dianne Feinstein stepped in it today,” tweeted Christopher Hale, a prominent Catholic Democrat.

I don’t think Feinstein is a bigot or a descendant of the 19th Century Know-Nothings who muttered about “rum, Romanism and rebellion.” But she went too far in raising doubts about whether Barrett would allow her religious views to affect her rulings as a judge (particularly about abortion rights, Feinstein’s priority when it comes to judicial nominations).

Unfortunately, Feinstein wasn’t alone. At the same hearing, Sen. Richard J. Durbin (D-Ill.) — himself a Catholic — engaged in a cringeworthy interrogation of Barrett, at one point asking her if she considered herself an “orthodox Catholic.” (Durbin also said that he had never encountered that term before, a sad commentary on the quality of his 19 years of Catholic education.)

You can imagine circumstances in which it might be legitimate for senators to press a judicial nominee aggressively about whether he or she might allow her religious beliefs to override her obligation to apply the law and the Constitution. (If Trump nominated former Alabama Chief Justice Roy Moore to the federal bench, I’d insist on that line of questioning.)

But Barrett didn’t deserve such treatment, despite a claim by a liberal interest group, the Alliance for Justice, that “Barrett has said that judges should be free to put their personal views ahead of their judicial oath to faithfully follow the law.”

Nowhere in its screed against Barrett did the group substantiate this extraordinary accusation. It cited a 1998 article Barrett co-wrote as a law student that argued that a Catholic trial judge with religious objections to capital punishment should recuse herself from deciding whether to impose a death sentence. That, of course, is the opposite of suggesting that a judge should issue a ruling based on her religion.

Feinstein wasn’t as crass as the Alliance for Justice in raising doubts about Barrett’s ability to keep her religious beliefs out of future rulings. But here’s what she did say late in the hearing:

“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 for years in this country.”

But I haven’t see any quotations from Barrett’s speeches or writings that support the notion that her rulings would be warped by religious dogma.

Yes, she once told graduates at Notre Dame law school (a Catholic institution) that their legal career was “but a means to an end, and ... that end is building the kingdom of God.” She also wrote in a Notre Dame alumni publication that life “is about more than the sum of our own experiences, sorrows, and successes. It’s about the role we play in God’s ever-unfolding plan to redeem the world.” These conventional pieties don’t raise ethical flags.

Finally, in the two-decade-old law review article about judges and capital punishment, Barrett and her coauthor did write that judges “should conform their own behavior to the church’s standard.” But, again, this was in the context of suggesting that a judge who had religious objections to capital punishment should withdraw from a decision about imposing the death penalty — not a suggestion that the judge should refuse to impose the sentence in deference to church teachings.

In fact, earlier in the same paragraph the article says: “Judges cannot — nor should they try to — align our legal system with the church's moral teaching whenever the two diverge.”

Of course, Feinstein’s concerns about ulterior religious motives involve not capital punishment but abortion. As a spokeswoman for the senator explained: “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.”

That general question can be fairly put to any judicial nominee, but Feinstein’s oddly phrased observation that “the dogma lives loudly within you” assumed facts not in evidence, even if it doesn’t qualify as Catholic-bashing. Feinstein is free not to vote for Barrett, but she owes the professor an apology.

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