Feinstein is off-base to demand that judges be secularists
WASHINGTON Some political tastes linger in the mouth like spoiled milk or a bad oyster.
Consider the shockingly shabby treatment recently accorded by some Democratic members of the Senate Judiciary Committee to Amy Coney Barrett, a law professor at Notre Dame who is being considered for a position on the 7th U.S. Circuit Court of Appeals. Her questioners displayed a confusion of the intellect so profound, a disregard for constitutional values so reckless, that it amounts to anti-religious bigotry.
Barrett is an instructive test case of secular, liberal unease with earnest faith, particularly in its Catholic variety. She is, in the description of a letter signed by every full-time member of the Notre Dame law school faculty, “a brilliant teacher and scholar, and a warm and generous colleague.”
Barrett is also, not coincidentally, a serious Christian believer who has spoken like one in public. This was enough to make Illinois Sen. Dick Durbin, a fellow Catholic, wary. “Do you consider yourself an ‘orthodox’ Catholic?” he asked Barrett, evidently on the theory that publicly acceptable religion must come in small, diluted doses.
It fell to Sen. Dianne Feinstein, however, to explicitly declare Barrett part of a suspect class. “Dogma and law are two different things,” she lectured. “And I think whatever a religion is, it has its own dogma. The law is totally different . ... 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.” Translation: Don’t let your dogma mess with my dogma.
Where to start? How about with the fact that Feinstein’s line of questioning was itself a violation of the Constitution? Here is constitutional scholar and Princeton President Christopher Eisgruber: “By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs.”
How about Feinstein’s indifference to the sordid history of anti-Catholic bias? “Feinstein leapt past 20th-century suspicions of Catholic allegiances,” legal scholar John Inazu told me, “to 19th-century bigotry toward Catholic identity: Who you are as a Catholic is ‘of concern.’ “
But the deeper problem is a certain type of liberal thinking that seeks to declare secular ideas the only valid basis for public engagement. A neutral public square, in this view, must be a secular public square. Since religious ideas and motivations are fundamentally illiberal, they must be contained entirely to the private sphere.
This is a thin and sickly sort of pluralism. It is permissible, in this approach, to advocate for human rights because John Locke says so, but not because of a theological belief that the image of God is found in every human being.
In effect, Feinstein would make her secularism the state religion, complete with its own doctrine and Holy Office. A judge is bound by the Constitution, not by any creed — as Barrett has affirmed again and again. But having a conscience and a character shaped by faith is not a problem; it is part of a rich and positive American tradition. Someone should inform the grand inquisitor.
Michael Gerson’s email address is michaelgerson@washpost.com.