Supreme showdown
Thorny questions of politics and faith in play as Senate hearing opens for Trump’s top court nominee,
It’s been seven decades since the Catholicism of a candidate aspiring to the American presidency has been a matter of divisive politics.
And, surprisingly — as Kamala Harris reminded at last week’s vice-presidential debate — Joe Biden, if he captures the White House on Nov. 3, would be the first Catholic in the Oval Office since John F. Kennedy.
Hard to believe now that religious affiliation was such a pungent issue in 1960 and anti-Catholic bigotry a significant element in that presidential campaign. Kennedy had to face it head-on, the accusation that he would not be independent of Rome, after 150 Protestant ministers met in Washington and demanded he specifically refute the church’s teachings. Kennedy responded eloquently during a speech in Houston.
“Are we going to admit to the world that a Jew can be elected mayor of Dublin, a Protestant can be chosen foreign minister of France, a Muslim can be elected to the Israeli parliament — but a Catholic cannot be president of the United States? Are we going to admit to the world — worse still, are we going to admit to ourselves — that one-third of the American people is forever barred from the White House?”
A couple of weeks before Americans went to the polls, three U.S. bishops issued a statement forbidding Americans from voting for candidates who disagreed with the church on abortion and birth control.
In truth, faith — explicitly the Christian and conservative right — has flexed more muscle in the years since than the Vatican ever did. President Donald Trump — who’s not a churchgoer unless he’s standing with a Bible in front of St. John’s after police officers and National Guard troops used tear gas to clear protesters from Lafayette Square — has bent the knee to that evangelical demographic.
Biden has not been shy about expressing his Catholic faith, the strength he’s drawn from it over a lifetime of tragedies. But he’s also firmly pro-choice, firmly pro-LGBTQ rights, separating state from his Catholic soul. As, indeed, do most of the world’s Catholics, who don’t cleave to the church’s mandates on abortion and birth control.
His Catholicism will not hurt him next month. Yet it might very well hurt Trump’s nomination for the Supreme Court, Amy Coney Barrett, at confirmation hearings before the Senate judiciary committee that began with opening remarks Monday and are expected to feature intense interrogation over coming days.
How far is it permissible to go when vetting a nominee for the Supreme Court, particularly one who is clearly so deeply animated by her faith — and an almost cultlike faction of the faith, People of Praise, a highly secretive fringe group that emerged out of the Catholic charismatic movement in the late ’60s. Coney, her husband and her father all belong to it.
California Sen. Dianne Feinstein arguably went too far three years ago during Barrett’s confirmation hearings for the 7th Circuit Court of Appeals. The Democratic senator said: “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 years in this country.”
The open attack on Barrett’s beliefs was widely condemned. Feinstein’s comments exposed the Democrats to charges of anti-Catholic bigotry. Barrett didn’t quite deny the accusation, responding that she didn’t want to comment on her agreement or disagreement with any specific Supreme Court precedent — in this case, obviously a reference to Roe vs. Wade, the landmark decision where the highest court in the land ruled that the U.S. Constitution protects a pregnant woman’s right to choose abortion without excessive government restrictions.
If confirmed, Barrett said at the earlier confirmation hearing, she would “follow unflinchingly all Supreme Court precedent.” But if, as expected, Barrett is confirmed to the Supreme Court now, she would be situated to set precedent.
A year previous to becoming a federal court judge, Barrett had signed her name to a newspaper advertisement that decried the “barbaric legacy” of Roe vs. Wade. As an appellate judge, she has at least twice in her three years on the federal court voted on abortion-related issues, joining dissenting opinions to decisions that favoured abortion rights. She has spoken to anti-abortion student groups. These were incidents Barrett did not initially include in the paperwork submitted to senators before this week’s hearing, though the judicial committee released a “supplemental update” late Friday.
Barrett has often declared — and did so again in the Rose Garden a fortnight ago where Trump formally introduced Barrett as his nominee to replace the liberal icon Ruth Bader Ginsburg (a COVID-19 super-spreader event) — her abiding reverence for the late Justice Antonin Scalia, describing the “incalculable influence” the conservative firebrand, for whom she’d clerked in the ’90s, had on her life. “His judicial philosophy is mine too — a judge must apply the law as written.”
Scalia had been scathing about Roe vs. Wade. In 1992, when a court plurality reaffirmed the essence of Roe, Scalia said the issue “is not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not.”
Scalia wrote ferociously dissenting opinions about gay rights, aligning himself with an attempt by Texas to criminalize some homosexual conduct. “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behaviour are immoral and unacceptable … the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”
He opposed gay marriage. He opposed opening up all-male military institutions to females.
This is Barrett’s guiding judicial star.
In a 2016 debate with Hillary Clinton, when Trump was just beginning to buff his sudden evangelical bona fides, he vowed that overturning Roe “will happen automatically, in my opinion, because I am putting pro-life justices on the court.” Debating Biden last month, Trump pretended Barrett was an unknown quantity on abortion. “You don’t know her view on Roe vs. Wade,” he lectured.
Of course he does, everybody does. Which is not the only reason that Democrats — not just Democrats either, because a sizable chunk of Republican voters are pro-choice — are appalled at the breakneck speed that Trump and his acolytes are rushing toward installing Barrett before the election, thereby solidifying a 6-3 conservative majority. The profound shift can’t be underestimated — on abortion, on health-care protections, on voting and gun rights.
On the immediate docket, a week after the election, is the future of the Affordable Care Act in a case brought by a coalition of Republican state attorneys general and the Trump administration. Trump has long promised to kill “Obamacare,” even amidst a coronavirus pandemic, stripping medical coverage from millions of Americans.
But lurking in the background, as always, is the fate of Roe vs. Wade, no longer under the protective aegis of Ginsburg.
So yes, in this context, as uncomfortable as it is to admit — and as discomfiting as it might be for the minority of Democrats on the judicial committee to undertake — Barrett’s reactionary Catholicism is very much in play.
The odious Mitch McConnell, Senate majority leader, is dead set on getting Barrett’s nomination wrapped up before the election. Approval from the judicial committee is inevitable, with a committee vote slate for Oct. 22, advancing the nomination to the Senate floor, where Republicans hold a 53-seat majority.
Republicans are recklessly fast-tracking a nomination process that on average, historically, has taken about 70 days. This time around, they want the Supreme Court seat sealed and delivered in three weeks.
Trump might be kicked to the curb by Nov. 4, but the ghost of monstrous Trumpism could haunt the Supreme Court for at least a generation to come.
Jesus wept.