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Amy Coney Barrett

U.S. POLITICS

Counterpoint: Amy Coney Barrett Would Be A Fine Supreme Court Justice.

Yes, she’s “very Catholic.” But conservatives have little to fear.

Amy Coney Barrett is, in more ways than one, everything a conservative could conceivably wish for in a potential Supreme Court nominee, especially those for whom ending abortion is a top priority. Although Barrett has never come right out and said that Roe v. Wade and Planned Parenthood v. Casey should be overruled (she’s not an idiot), she has impeccable conservative credentials: she clerked for Justice Scalia, attended and taught at Notre Dame’s law school and signed an amicus brief in the Obamacare case about nuns and contraception.

[Barrett] has impeccable conservative credentials: she clerked for Justice Scalia, attended and taught at Notre Dame’s law school and signed an amicus brief in the Obamacare case about nuns and contraception.

She’s also what you might call “very Catholic,” which I mean as a compliment. And she has seven children (two adopted, one with special needs), the obvious significance of which is officially impolite to notice, and so I will note only that I have never met a person who really believed in abortion rights who also had seven children. When Barrett was in law school, she won the prize for best exam in (deep breath) Administrative Law, Civil Procedure I, Civil Procedure II, Constitutional Law, Contracts, Criminal Procedure, Evidence, First Amendment, Torts II, and Legal Research and Writing. (You sort of feel bad for the second-best student in Amy Barrett’s class, don’t you?) And everyone seems to love her: At Notre Dame, every single full-time member of the faculty signed a letter endorsing her fitness for office.

Well, not everyone. John Zmirak has recently taken to the pages of this publication to raise what he calls “profound questions” about Judge Barrett’s fitness for office. Zmirak’s starting point is a 1998 law review article that Barrett co-authored as a student, which argues that Catholic judges should recuse themselves in death-penalty cases. Zmirak isn’t wild about that on its own terms—but what really gets his goat is the idea that the logic of the 1998 article could be applied to other issues: in particular, immigration. What if Pope Francis (who Zmirak seriously detests) were to declare, as official Catholic teaching, that certain restrictions on immigration were impermissible? What would a hypothetical Justice Barrett do then? Zmirak says that Barrett’s “weirdly theocratic” vision of a judge’s role makes her unfit for office.

Zmirak is not a lawyer. By training, he has an M.F.A. in fiction-writing, and by vocation, he is a conservative Catholic commentator and the author of books like The Politically Incorrect Guide to Catholicism. He has also spent the past several years criticizing what he calls “illiberal Catholicism” generally and Catholic integralism in particular, which Zmirak refers to as “Catholic sharia.”

There’s nothing wrong with not being a lawyer (probably a good idea, actually). But Zmirak’s taste for fiction appears to have gotten the better of him this time.

Equal Justice Under Law

“Equal Justice Under Law”

As Ed Whelan has explained from his guard tower over at National Review, Judge Barrett does not hold the position Zmirak attributes to her, and may not have ever actually held it. When Barrett was nominated to the Seventh Circuit, she testified to that in no uncertain terms. Her position in the confirmation hearings was that of her old boss, Justice Scalia: “[t]here’s “no such thing as a Catholic judge,” he’d say, only “good judges and bad judges.” On this view, a judge’s only role is to answer truthfully when asked “what does the law require in this situation?”, a question which has no normative component, and so the only relevant principle of Catholic teaching is the prohibition on lying. Barrett said that there was no case or category of cases in which she’d feel obligated to recuse herself on grounds of religious conviction and that her faith would be irrelevant to her work as a judge.

Barrett’s behavior as a judge has been consistent with her testimony. There’s no evidence that she’s recusing herself from certain kinds of cases, or enforcing Catholic teaching in any other respect.

Barrett’s behavior as a judge has been consistent with her testimony. There’s no evidence that she’s recusing herself from certain kinds of cases, or enforcing Catholic teaching in any other respect. Just this year, she voted to uphold a Chicago law banning pro-life counselors from talking to people entering abortion clinics because Supreme Court precedent unambiguously required that. I’m not saying that Barrett’s ideological background would be irrelevant to her work on the Supreme Court. There’s just very little evidence for Zmirak’s claim that Barrett would be unusually deferential (indeed, uniquely so) to Catholic social teaching.

(As for the article, what seems to have happened is that a law school professor of hers was working on it and offered her a chance to join as a co-author. For a third-year law student, that’s a tremendous opportunity to get some published work on your CV. When I was in law school, I had a similar opportunity. I can tell you that the question of whether I agreed with every particular of the argument we were making was, at best, a secondary consideration.)

Zmirak does not mention any of this, which is a bit odd, given that his essay closes with a demand for Barrett to say more or less what she has already said. If this was an honest mistake, then, in my view, Zmirak should make things right by publicly retracting his criticism and (why not) paying me a modest bounty for my services as fidei defensor. Such a retraction would simply re-align Zmirak with his stated views as of 2018, when he wrote an essay praising Barrett as a potential Supreme Court nominee. (Interesting, isn’t it, how your views on something can change from what you said in an earlier article?)

Truth to tell, I was amused to read Zmirak’s 2018 praise of Barrett, and in particular his discussion of Dianne Feinstein’s comment to Barrett that the “dogma lives loudly” in her. Feinstein’s remark was widely regarded as a Homeric error, and spawned hundreds of paint-by-numbers “How Dare You?” op-eds, not to mention t-shirts and mugs. The day she said it was also something like Fat Tuesday for my conservative lawyer friends in Washington, one of whom remarked to me that Feinstein’s comment had likely ensured Barrett’s confirmation to the Supreme Court.

Back then, Barrett stood accused by Feinstein of not just being Catholic, but meaning it. Now it is Zmirak who finds Barrett’s Catholicism too much. Feinstein fretted that Barrett believed in Catholic dogma regarding abortion; Zmirak worries that she might share the Pope’s (and Christ’s) compassion for the stranger. There is no evidence that Barrett will realize her opponents’ fears, in either respect. But I can still take a little pleasure at the panic she inspires.

There is nothing as terrifying, it seems, as a Catholic woman who really believes.

Written By

Ian Samuel is an attorney and a self-described “Catholic American socialist.” He clerked for Justice Antonin Scalia in October Term 2012, and formerly taught at Harvard Law School and Indiana University.

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