The conservative criticism of U.S. Sen. Dianne Feinstein for her questioning of judicial nominee Amy Coney Barrett is misguided: On key issues, it was appropriate and necessary to ask Barrett, a Notre Dame law professor, about her beliefs.
President Donald Trump nominated Barrett to the U.S. Court of Appeals for the 7th Circuit. Barrett, a staunch conservative, had written about the duties of Catholic judges to be true to their religious beliefs, including in opposing abortion rights. In doing so, Barrett made her religious beliefs, and how they would affect her judging, a necessary area for questioning.
More than 60 years ago, when William Brennan was nominated for the Supreme Court, he was asked at his confirmation hearing which would prevail in guiding him as a judge: his Catholic faith or the law of the United States. He replied that he would be controlled by “the oath that I took to support the Constitution and laws of the United States and … that alone….”
This criticism of Feinstein is unfair and ignores the context of her questions. It was Barrett, not Feinstein, who made her Catholic faith an issue by writing about how Catholic judges should behave on the bench.
This never has been seen as the least bit controversial. But Barrett co-authored a law review article titled “Catholic Judges in Capital Cases” that expressly disagreed with Brennan and said: “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”
In light of this, it was completely justified for the senators to ask Barrett about her views on issues such as abortion and the death penalty and whether she would follow the law as articulated by the Supreme Court. The confirmation process is the most important political check on the unelected federal judiciary. Since the time of George Washington, presidents have nominated judges based on their political ideology and the Senate has rejected nominees on exactly this basis. That is the way it should be. Once confirmed a federal judge has life tenure and remains on the bench until he or she resigns, is impeached and removed, or dies.
At the confirmation hearings on Sept. 6, Feinstein asked Barrett about what she had written, including that for Catholics the “prohibitions against abortion and euthanasia … are absolute.” The questioning was all the more essential because in her law review article Barrett had said that the answer for a religious judge in a moral quandary is to disqualify himself or herself from participating, but in response to senators’ questions she said that she couldn’t “imagine … any class of cases” where faith would force her recusal.
Conservatives sharply criticized Feinstein for introducing religious faith into the confirmation process. John I. Jenkins, the president of Notre Dame, wrote Feinstein: “It is chilling to hear from a United States Senator that this [Catholic faith] might now disqualify someone from service as a federal judge.” An article in the National Review declared: “[D]uring a confirmation hearing for 7th Circuit Court of Appeals nominee Amy Coney Barrett, Democratic senator Dianne Feinstein attacked the nominee for her Roman Catholic faith.”
This criticism of Feinstein is unfair and ignores the context of her questions. It was Barrett, not Feinstein, who made her Catholic faith an issue by writing about how Catholic judges should behave on the bench. Feinstein simply was asking Barrett whether her law review article reflected how she will behave as a judge. At no time, did Feinstein “attack” Barrett for her religious faith or suggest she should be denied confirmation because she is a Catholic.
Whether Barrett will follow the law on topics such as abortion is a relevant and essential question. The fact that Barrett invoked her religious faith as the grounds for her abortion views does not give her a free pass from inquiry.
Judges have tremendous discretion in deciding cases. Decisions in constitutional cases are almost always about balancing competing interests. How the balancing is done is inevitably a product of the judges’ own views and values and life experiences. That is why it is totally justified for senators to ask about a nominee’s positions on key issues and to vote against those they find unacceptable. Democrats and Republicans alike have done this throughout American history.
The attack on Feinstein is misguided because it mischaracterizes her questions and ignores the basis for them. I fear that it is a smoke screen by the right to take attention away from a very conservative nominee that Trump is trying to put on the federal appeals court bench.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at email@example.com.