The left is engaged in full-on panic over control of the U.S. Supreme Court—which Justice Scalia once described as having become a de facto sitting Constitutional Convention, subjecting every law in every state to the views of five lifetime appointees: an oligarchy of lawyers from Harvard, Stanford, and Yale.
The next Supreme Court appointment, assuming Trump gets one, will be pivotal.
As Justice Ruth Bader Ginsburg’s health concerns continue to loom, liberals are trying to spook Senate Majority Leader Mitch McConnell into swearing off confirmation hearings for any Trump appointee during an election year. At the same time, The New York Times and The New Yorker are trying to drive Brett Kavanaugh off the court with still more unsupported, second- or third-hand allegations. The spectacle is positively Orwellian.
The next Supreme Court appointment, assuming Trump gets one, will be pivotal; we can’t afford for him to waste it by choosing a justice whom he thinks will be “easier to confirm,” despite his or her weaknesses.
Trump should recognize that no conservative appointment will be “easy.” The left has already shown us their playbook. It reads: treat as “literally Hitler” any jurist who might return to an honest reading of the Constitution on Second Amendment rights, abortion, or executive authority on immigration.
President Trump should not take the salacious nature of the smear campaign against Brett Kavanaugh to mean that he must appoint a woman. Why believe that leftists are incapable of crafting an obscene smear of either sex? Put nothing past these people. Nothing.
More importantly, if we let the attacks on Clarence Thomas and Brett Kavanaugh become precedent, it would mean that Republicans could never again nominate a man. That’s obviously silly, severely restricting our choices among an already narrow conservative bench.
There will be no easy appointments; Trump should make it count.
Trump’s presumptive choice is Judge Amy Coney Barrett, currently sitting on the Seventh Circuit. But I have profound questions about Barrett’s suitability for the high court, as Barrett’s apparent unwillingness to separate her faith from her legal judgment should worry conservatives; jurists’ first allegiance should be to the Constitution, not the shifting political and doctrinal line at Pope Francis’ Vatican.
THE NEXUS OF FAITH AND JURISPRUDENCE
As a convinced and apostolic Catholic, I’m cheered by the fact that Barrett is a pious member of my Church. I am confident that her sentiments are profoundly pro-life, but I find myself troubled by Barrett’s public statements on the nexus of her jurisprudence and her faith.
Justice Scalia, a devout Catholic and convinced pro-lifer, famously said that if he’d found abortion rights in the Constitution, he’d have ruled to uphold them—and favored an amendment to change it.
Specifically, Barrett fails to draw the bright line separating her legal judgment and practice from her faith, as Justices Alito and Thomas do. Like Justice Scalia, these men are firm originalists, who interpret the Constitution in light of the original public meaning of its text—regardless of their personal or religious preferences. Justice Scalia, a devout Catholic and convinced pro-lifer, famously said that if he’d found abortion rights in the Constitution, he’d have ruled to uphold them—and favored an amendment to change it. That’s the proper attitude for a jurist in a constitutional republic, who knows that he’s neither a prelate nor a philosopher king.
Why then should conservatives, even Catholics, be concerned about a justice letting his or her faith influence his or her jurisprudence? The answer is simple: Pope Francis sits on the throne.
Francis has used his position to promote a wide array of leftist political and theological stances that conflict with his predecessors’ teachings. These include capital punishment, which goes back to the Covenant of Noah in scripture, and was on the books of the Vatican City state into the late 1960s. Francis has recently unilaterally declared capital punishment forever “inadmissible,” whatever that means. In fact, Francis has gone further and claimed that life imprisonment is also evil.
Still more urgent is immigration. On this subject, Francis defies the Church’s own Catechism, which clearly states that the common good of receiving countries must be weighed against the desires of newcomers to better their lives, and that immigrants must obey immigration laws, or lose their right to enter. Instead, Francis routinely denounces every effort to enforce any democratically enacted immigration law. His appointees have literally demonized politicians such as Matteo Salvini, comparing him to the “Antichrist” for his stance opposing the mass influx of Muslims into Europe.
Some Catholics have rightly defied Francis, noting that he has no authority to change long-settled teachings, or impose specific politics on Catholics. But too many pious Catholics seem conflicted, and feel obliged to adapt their long-held beliefs to suit the current inhabitant of the Vatican—as if he were some kind of oracle. This “Catholic Stalinism,” if you will, recalls the attitude depicted in Arthur Koestler’s Darkness At Noon: for the good Stalinist, the “voice of history” is the Communist Party in Moscow, and the current Party Line is what they must believe.
BARRETT’S HIGHER POWER: CONSTITUTIONAL LAW OR DIVINE LAW?
Is Amy Coney Barrett this kind of Catholic? Or is she a more independently minded, Constitutionally scrupulous Catholic, in the mold of Justice Scalia? We need to ask that question, in light of her own writing. Barrett co-authored a scholarly legal article with John H. Garvey, now the President of the Catholic University of America. They stated their conclusion quite bluntly:
[W]e believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death.
Catholics differ on this issue for theological reasons, but what matters is what Barrett believes. A full ten years before Pope Francis made clear that he considers all (not most) capital punishment “inadmissible,” Barrett was anticipating the change in Catholic teaching, and binding herself to it. Why? She cites a document of the Second Vatican Council:
Bishops, teaching in communion with the Roman Pontiff, are to be respected by all as witnesses to divine and Catholic truth. In matters of faith and morals, the bishops speak in the name of Christ and the faithful are to accept their teaching and adhere to it with a religious assent of soul.
If Barrett and Garvey were correct about the obligations of Catholic judges, then no Catholic who agrees with them should be appointed to any court, or confirmed by the Senate if appointed. It is the duty of a judge to implement the U.S. Constitution, not the teachings of the Catholic Church—or, worse, the political preferences of a pope who has decided unilaterally to change those teachings.
What answer do Barrett and Garvey offer to the dilemma of a Catholic judge who is unwilling to enforce the clear dictates of the U.S. Constitution on capital punishment? To avoid “formal cooperation with evil,” she must recuse herself from ruling:
The moral impossibility of enforcing capital punishment in the first two or three cases (sentencing, enforcing jury recommendations, affirming) is a sufficient reason for recusal under federal law. (p. 306)
The answer gets more emphatic further down:
[T]he principle at stake in capital sentencing is a moral one, not a factual or simply legal one. And the judge is asked to violate it—not to reason from different legal premises to morally unobjectionable conclusions (like Justice Brandeis did in Whitney). There is no way the judge can do his job and obey his conscience. The judge's conscience tells him to impose a life sentence; federal law directs him to impose death. Because the judge is unable to give the government the judgment to which it is entitled under the law, § 455(b)(1) directs him to disqualify himself. (p. 334)
It is clear what Judge Barrett believes about the obligations of a Catholic judge when there is a direct conflict between her views of what the Church teaches and the U.S. Constitution dictates: they must recuse themselves.
That’s a scary prospect, if Judge Barrett is to become Justice Barrett.
FAITH OVER TEXTUALISM
Leftist judicial scholar Mark Tushnet has argued that Barrett could not vote to overturn Roe v. Wade without raising the question of whether she has let her religious opinions unduly color her reading of the Constitution. As he wrote at Vox:
An orthodox Catholic judge’s views about material cooperation with evil might therefore play no role in his or her decision. The difficulty, though, is that someone observing the judge’s action—the reasonable person whose inferences matter when the “appearance of impartiality” standard is applied—can’t tell the difference between a decision to overrule Roe because the decision was not firmly rooted in the relevant purely legal materials, and a decision to do so because any other course would amount to material cooperation with evil, from the judge’s perspective.
Tushnet is right. Given Barrett’s view that one’s Catholic convictions should govern, and prevent a judge from following the letter of the U.S. Constitution on capital punishment, it would be impossible to discern what motivated her decision. If Roe came before a future court, Barrett should probably recuse herself. I don’t rule it out that she might in fact do so. By her own logic, she’d be right. That’s because no one with a view of the law like Barrett’s belongs on any federal court, let alone the Supreme Court.
It is the duty of a judge to implement the U.S. Constitution, not the teachings of the Catholic Church—or, worse, the political preferences of a pope who has decided unilaterally to change those teachings.
Assuming Barrett is intellectually consistent, the impact of her undue deference to Church authority would extend to other issues, especially the crucial subject of immigration. In her article, Barrett cites as authoritative not the Catechism of the Catholic Church, which is still (for the moment) sane on the subject. (Pope Francis could change it at any time to demand absolute open borders, and Barrett would apparently feel bound by that.)
No, she cites a single papal encyclical by Pope John Paul II, and “clear and forceful denunciations” of capital punishment by the U.S. Conference of Catholic Bishops. If those authorities are to bind Catholic jurists, then on immigration their import is clear. Virtually every effort by the Trump administration to enforce U.S. law regulating immigration has been denounced by the U.S. Conference of Catholic Bishops, which faces financial boycotts from laymen over sex abuse, and derives much of its income from federal non-profit contracts, mostly to serve immigrants. Pope Francis has spoken clearly and forcefully against virtually all immigration restrictions, anywhere. On his visit to the U.S. he specifically condemned then-candidate Trump’s campaign to build a wall on the southern border.
If an immigration case came before the Supreme Court, would a Justice Barrett feel compelled by her Catholic conscience to follow the pope and his bishops? Would she recuse herself, depriving us of a crucial vote on a subject of enormous national importance? Would her scrupulous and idiosyncratic view of the vast deference Catholics owe the pope on political issues, ironically, lead to the ongoing influx of immigrants who overwhelmingly vote for pro-choice candidates?
If an immigration case came before the Supreme Court, would a Justice Barrett feel compelled by her Catholic conscience to follow the pope and his bishops?
What if Barrett distinguishes between “life or death” issues such as capital punishment, and what Catholics traditionally called “prudential” issues such as immigration, where laymen are free to differ from bishops and the pope? The problem is that the barrier between such kinds of issues has collapsed under Pope Francis.
As recently as the reign of John Paul II, then-Cardinal Ratzinger listed capital punishment as such a prudential issue. Pope Francis has determined to extend papal sway over much, much more. Further, leading Catholics are pretending that immigration, poverty programs, health care, and nearly every other policy affecting human life, is equally a “life issue.” Cardinal Blase Cupich of Chicago responded to the exposure of Planned Parenthood’s profiting from the sale of fetal lungs and eyes by equating that crime with the outcomes of conservative policies on the Second Amendment, immigration, and welfare programs:
While commerce in the remains of defenseless children is particularly repulsive, we should be no less appalled by the indifference toward the thousands of people who die daily for lack of decent medical care; who are denied rights by a broken immigration system and by racism; who suffer in hunger, joblessness and want; who pay the price of violence in gun-saturated neighborhoods; or who are executed by the state in the name of justice.
Cupich followed here the doctrinal program of his predecessor, leftist Cardinal Joseph Bernardin, which is called in Catholic circles the “Seamless Garment” of “life issues.” Barrett cited the Seamless Garment favorably, as a source for her rejection of capital punishment. Would she agree with Pope Francis, Cardinal Cupich, and the U.S. Council of Catholic Bishops, that immigration is a “life issue” where she is bound to obey the Vatican or recuse herself?
I don’t know the answer. But if President Trump makes the mistake of nominating Judge Barrett for the U.S. Supreme Court, I hope Republican senators are willing to demand answers from her. If she does not renounce the weirdly theocratic version of a Catholic judge’s constitutional obligations that she has offered, she deserves rejection by the Senate.
As a Catholic who has been active in the pro-life movement since 1975, that’s how I’d vote.