Rejoinder: Is Amy Coney Barrett the Best Choice for SCOTUS?

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  • 08/21/2022

When I wrote my piece on Judge Amy Coney Barrett, I was hoping that someone would prove me wrong. That, or reassure me, and assuage my doubts about her as the presumptive front-runner for the next Trump appointee to a lifetime position on the U.S. Supreme Court.

I was reluctant to raise the questions I had about Judge Barrett, precisely because she seems like such a lovely person. She’s part of a beautiful family, and belongs to a zealous devotional group in my own Catholic Church. All my political allies adore her, and she endured a public grilling by ill-informed leftist senators who really did show an ugly anti-Catholic bias in her confirmation hearing. That made me as angry as all my friends, Catholic and non-Catholic. She has ruled well on the Second Amendment, and on due process for sexual assault cases on campus. So I put off writing the piece, for many months.

But my doubts ate away at me: was I letting tribal loyalty hold me back from asking questions on issues crucial to the country? And, for the purposes of evaluating her as a potential Supreme Court nominee, it doesn’t really matter that Judge Barrett’s a lovely person. Other smart, highly-educated, patriotic and family-oriented Americans include Sandra Day O’Connor, Anthony Kennedy, David Souter, and John Roberts. Still, most of us found those Republican appointees a disappointment on the Court.

Would Barrett turn out the same? We still don’t know. None of the responses I’ve yet seen put my doubts at rest.

The initial reactions (on social media) were predictable, if no less distressing. They comprised the following:

  1. Personal: You dislike her because she’s a woman. Your queries about her published academic article in a legal journal amount to stalking.
  2. Tribal: You’re being anti-Catholic, or a disloyal Catholic, for questioning one of our own.
  3. Catholic Supremacist: Of course any good Catholic would follow the Church over the Constitution. How dare you argue otherwise, you “Americanist” heretic. What are you, a secret Freemason? (And so on.)

None of these struck me as serious or worth addressing. And none of them answered my question about Judge Barrett—which I’ll recapitulate here:

Given her past statement in print that all Catholic judges should recuse from imposing the clearly Constitutional death penalty, in light of the objections of the U.S. Catholic bishops and a single document written by one pope (reversing his predecessors’ teaching)—would Barrett feel obliged to recuse herself on important immigration votes? The U.S. bishops have made their position on immigration crystal clear—and so has Pope Francis. It’s de facto open borders. In 2017, 24 U.S. bishops and a highly placed Vatican cardinal, Peter Turkson, called for U.S. Catholics to “disrupt Trump” and use church facilities to hide illegal aliens. Pope Francis just planted a huge bronze, sentimental statue of migrants in the middle of St. Peter’s Square.

Does Barrett feel bound by this new, developing doctrine? If Pope Francis changed the Catechism of the Catholic Church on immigration, as he already has on capital punishment, would she then feel bound?

[caption id="attachment_180581" align="aligncenter" width="1920"]Pope Francis Pope Francis[/caption]

Would her deference extend to other “life issues” included in the “Seamless Garment” she cited in her article as a legitimate source of authority? The ever-expanding “Garment” includes virtually every public policy question that affects human life, from Medicaid funding to gun rights and immigration policy—and on every one of them, it makes the price of restricting abortion almost limitless government intervention on other subjects. Does she regard the Seamless Garment as binding on Catholic judges on other issues?

In light of this massive sea-change in papal politics, patriotic Catholic conservatives must think through carefully how much deference they owe the Vatican and the leftist bishops it appoints on political issues. Especially if they seek a lifelong appointment to the highest court in the land.

These are not unreasonable queries. None of them arise from misogynistic, personal or religious animus. In the past, non-Catholic conservatives didn’t have to ask Catholic conservatives (like me) questions like that.

That was before Pope Francis. In his time in office, this pope has made abundantly clear that he detests the free market, considers fossil fuels a threat to the planet, prefers globalist institutions to elected national governments, and favors virtually open borders. His number two man on social and natural sciences, Bishop Marcelo Sorondo, returned from a carefully shepherded tour of Communist China—and announced that China implements Catholic social teaching better than any country on earth, especially the U.S. Since Francis has not contradicted him, that appears to be the official Vatican stance. Does Judge Barrett reject all that? Has anybody asked her?

Just last week, Pope Francis explicitly endorsed and recommended an article from the quasi-official Vatican magazine, La Civilta Cattolica, which denounced the pro-life movement and religious right as examples of the “ecumenism of hate.” Francis himself warned that some American evangelicals are not “really Christians” in any sense. Francis boasted to journalists that he feels honored to be attacked by conservative Americans. Francis has refused to meet with orthodox cardinals, but invited pro-abortion population controllers linked to George Soros to speak at the Vatican. And so on—whole books have been written on this troubling subject, by leading Catholic thinkers.

In light of this massive sea-change in papal politics, patriotic Catholic conservatives must think carefully about how much deference they owe the Vatican and the leftist bishops it appoints on political issues—especially if they seek a lifelong appointment to the highest court in the land. Has Judge Barrett? In light of her writing, the president’s team needs to ask her, and GOP senators need to get her answers on the public record, before she’s confirmed to the Supreme Court. Indeed, any Catholic seeking political office in America ought to make clear where he or she stands on the views of a Vatican that clearly opposes the U.S. national interest, and disapproves of our economic and political system, compared to Communist China.

This wasn’t a question that came up under Pope John Paul II, or Benedict XVI.

I picked up conservative legal pundit Ed Whelan’s response to my piece, in National Review, with high hopes that he could soothe my anxiety. Alas, I was disappointed. He offered some useful information about Judge Barrett’s views and personal qualities. He helpfully cited several cases in which she ruled correctly, and constitutionally, on immigration. He even cited her confirmation testimony, in which she directly addressed the question of recusal, where the Constitution stands athwart her perception of the duties of a Catholic who regards single (non-infallible) papal statements as authoritative and binding. But he cited her statement, and previous rulings on immigration, as sufficient to dispose of the question I raised. Read the passage he cited, and you’ll see why they don’t. He quotes her: “I cannot think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience.”

I can.

No cases come to the Supreme Court where a judge must directly impose capital punishment, the instance where she claimed that (in deference to one, innovative papal teaching) Catholic judges must recuse. But cases on immigration do come to the court—for instance, the travel ban imposed by President Trump on terrorism-prone countries. If Pope Francis acted, as seems likely, to overturn Catholic teaching on immigration and demand de facto open borders, would Barrett feel bound not to take part in Court decisions to overturn lower-court injunctions? By doing so, she might feel she was directly taking part in restricting or removing foreigners from the country—something Pope Francis clearly believes, and might soon officially teach, is “inadmissible,” just like the death penalty.

What then?

We still have no answers.

[caption id="attachment_180582" align="aligncenter" width="1920"]Pope Francis meets President Trump Pope Francis meets President Trump[/caption]

Ramesh Ponnuru offered none in the second response National Review felt compelled to run. He added little to what Whelan wrote, likewise ignoring my central question: whether Barrett would recuse herself on immigration cases (depriving us of a crucial vote) if Pope Francis changed Catholic teaching, as she called on Catholic judges to recuse after Pope John Paul II changed Catholic teaching. Ponnuru did say one thing of interest: he had no real problem with Barrett’s position, demanding such a recusal in such a case. Nor did he seem to understand why either I on the right or Mark Tushnet on the left find it troubling. So I’ll say this even more clearly: the proper impact of papal statements on any judge’s judicial decisions (whether how she votes or if she recuses) should be none. That’s the (correct) position of the other Catholic justices on the Court, and it’s what we must demand, especially given Pope Francis’ aggressive, anti-American politics.

The proper impact of papal statements on any judge’s judicial decisions (whether how she votes or if she recuses) should be none.

Another reply to my piece appeared, here at Human Events, that raised more questions than it settled. Mostly, the author repeated Whelan’s points, albeit in a sneering, hostile tone. Unlike Whelan, Ian Samuel misquoted Barrett’s testimony. (He also got my academic credentials wrong, revoking my Ph.D. and making reference only to a creative writing degree I earned along the way.) Samuel, a high school graduate, wrote that “Barrett said that there was no case or category of cases in which she’d feel obligated to recuse herself.”

Not so. As Whelan accurately reported, Barrett said, “I cannot think of any.” That’s akin to someone saying, on the witness stand, “I do not recall.” It is not a categorical statement. It simply reflects the witness’s state of mind at the moment. People who committed or witnessed a crime and don’t wish to testify to it say “I do not recall” because it’s essentially perjury-proof. Barrett wasn’t trying to avoid that, of course, but she did avoid tying her own hands in any way. She is always free to think of a case where her stance on recusal does apply.

Remember, Pope Francis has not yet issued an encyclical changing Catholic teaching on immigration. We do know that when Pope John Paul II issued an encyclical changing the teaching on capital punishment, Barrett signed an article claiming that this papal decision bound every faithful Catholic judge to recuse himself or herself from imposing such a punishment. If Pope Francis takes the same kind of action, would Barrett draw the same conclusion? Nothing anyone has said in response to my central—really my only—question has brought us any closer to an answer. Conservatives expected to fight for the confirmation of a nominee have the right to one.

Samuel did manage to impugn Barrett’s integrity by suggesting that she signed an academic paper without believing in its central contention and main argument, apparently out of ambition to promote herself. If Barrett had signed a legal article endorsing forced sterilization of those with low-IQ scores, echoing Justice Oliver Wendell Holmes’ infamous statement, “Three generations of imbeciles is enough,” how easily would we accept vague, lawyerly disavowals? In her testimony, she disclaimed agreeing with the paper “on every particular.” But the recusal question was not a particular. It was the paper’s central contention. She did not repudiate it, but merely said she “cannot think of any” cases where it would apply to her.

Nothing anyone has said in response to my central—really my only—question has brought us any closer to an answer. Conservatives expected to fight for the confirmation of a nominee have the right to one.

A self-proclaimed “American Catholic socialist,” Samuel says in the article’s title that Barrett would make a “fine” Supreme Court justice. He does not say, “conservative” or “originalist” justice. He does claim that she’d be a “pro-life” justice—but the only evidence he cites is the number of children Barrett has. That’s not really what people mean when they say “pro-life” in this context. We don’t care so much about a Justice’s personal sentiments, or even religious beliefs. We want to know whether he or she thinks that the Constitution demands overturning three major pro-abortion precedents: Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey, and would have the moral courage in the face of enormous public pressure to vote accordingly. That’s it.

On that score, Barrett’s statements have been less than heartening. In 2013, Barrett said in a speech:

I think it is very unlikely at this point that the court is going to overturn Roe [v. Wade], or Roe [v. Wade] as curbed by [Planned Parenthood v.] Casey. The fundamental element, that the woman has a right to choose abortion, will probably stand. “The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded… I think supporting poor, single mothers would be the best way to reduce the number of abortions in the U.S.

Are these the words of a stern originalist who regards those precedents as badly decided and worth overturning? Would pro-choicers rally enthusiastically to confirm a pro-choice judge who expressed that kind of defeatism about preserving abortion rights? I doubt it. They want to win.

Even Barrett’s prescription, more welfare support for pregnant women, echoes the Seamless Garment advocated by the U.S. Catholic Conference, which speaks out reluctantly and infrequently on abortion, but constantly on the need to open U.S. borders and boost welfare programs. It echoes the call of half-hearted abolitionists to free some of the slaves by purchasing them from their masters.

Most interesting of all is Samuel’s conclusion, where he asks whether Barrett “might share the Pope’s (and Christ’s) compassion for the stranger.” Samuel apparently agrees with Pope Francis’ support for de facto open borders, and claims that Christ Himself would endorse it. It’s nice to know that an open-borders socialist like Samuel thinks Barrett would make a “fine” addition to the Court. As conservatives who worry about the ongoing influx of immigrants, and their regular votes (along identity politics lines) for pro-choice, socialist Democrats, it’s hardly reassuring. Even if Roe and the other precedents were overturned, an America constantly flooded by new pro-choice voters would likely only protect unborn children in a small and shrinking number of states, until those, too, shifted from red to blue, and our country’s unique culture and system, our gun rights and all our other liberties, were repealed one by one.

Imagine California times fifty.



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