By Kevin Martin
On Sept. 18 Ruth Bader Ginsburg passed away, leaving behind a lioness’ legacy and an empty seat on the United States Supreme Court—and subsequently causing our restless country to further descend into chaos. Eight days later, President Trump nominated Amy Coney Barrett to fill the ninth seat on the Supreme Court. The attacks that have preceded and followed this nomination ought to bewilder and embarrass any decent American. Those looking to prevent her appointment to the court have attacked her personal life, calling into question the adoption of two of her children and, more compromising to our country’s well-being, railing against the audacity of Barrett’s identity as a practicing Catholic. The question of whether Catholicism, and those who practice it, can coexist with the American system has long been a pertinent issue in this country. It was, in fact, one of the major arguments against John F. Kennedy’s presidency. Seemingly solved, the Catholic question, stained with bigotry, has resurfaced with vigor due to the nomination of Barrett. There may be legitimate reasons to oppose Barret’s nomination—but her faith is not among them.
Many have publicly warned that Barrett’s Catholic beliefs will cause her to disregard the Constitution. The most prominent example: During Barret’s confirmation hearing as a district court judge, Democratic Senator Dianne Feinstein said, “the dogma lives loudly within you—and that’s of concern.” Feinstein was clearly and openly arguing against Barrett’s confirmation on the grounds that she was a Catholic who actually professed to believe the teachings of the church.
Barrett is not the only judicial nominee to receive this treatment. In another confirmation hearing for a federal judgeship, Brian Buescher, a member of the Catholic organization called the Knights of Columbus, was ridiculed by Democratic Senators Kamala Harris and Mazie Hirono for being a knight. Senator Hirono put the question to Buescher like this: “If confirmed, will you recuse yourself from all cases in which the Knights of Columbus have taken a position?” These Senators appear to aspire to a new restriction on religion in American government, one in which no one ought to hold public office if their religious “dogma” may inform them on issues of morality, or if they are members of religious societies that would influence them on political matters.
These types of assaults on religious practice ought to concern all of us, whether we are Christians, Muslims, Jews, or nothing at all. The very idea that anyone should be barred from serving in public office purely due to their religion or lack thereof is fundamentally intolerant and unconstitutional under the First Amendment. But these prejudiced views are nothing new to Catholics in America.
For much of America’s history, Catholics were seen as outsiders deserving of a watchful eye. Catholics were deemed untrustworthy to ascend to any government office purely on the basis that we would be adherent to our “dogma.” Bigots from our country’s past (like those of the 19th-century “Know-Nothing” party) designated Catholics as illiberal actors, hell-bent on brining papal despotism to America. The recent comments with regard to Barrett and other Catholic nominees appear to show that some vestige of this intolerant ideology remains.
Amy Coney Barrett has repeatedly explained that she is an originalist when it comes to interpreting the Constitution. To be an originalist means to believe that the Constitution should be interpreted as it was written, not as one might wish it was written. In her acceptance speech of the nomination to the court she said, “Judges are not policy makers, and they must be resolute in setting aside any policy views they might hold.” This sounds far from someone whose “dogma” will corrupt their interpretation of the Constitution into manufacturing a theocratic state.
The strangest part of this accusation, though, stems from the fact that every justice approaches the Constitution with some degree of pre-existing bias. In many cases, that bias is clear and evident, particularly in certain forms of “living constitutionalism” that use a desire to “update” the Constitution as cover for a Justice’s personal preferences (see especially William Brennan). Even if we grant the argument that originalism can also serve as a cover for policy preferences, it’s hard to see how this differs from any other method of approaching the Constitution. A logically consistent originalist should at least be trying to interpret the law impartially. It’s hard to say the same for someone who openly claims not to.
Sadly, I fear civility will not prevail during this confirmation process. We must brace ourselves for Senate hearings in which Amy Coney Barrett will be condemned for her religious beliefs, not questioned on the basis of her judicial philosophy. We once again may see anti-Catholic bigotry front and center; and this vitriol will seep from the Senate into our national discourse. Not merely Catholics, but anyone with strong religious convictions will sense a clear message: you aren’t welcome here. I hope that I am wrong; I hope Barrett’s confirmation hearing will be handled with civility, that the Catholic question is never raised, and that we can focus on whether or not she would make a good Supreme Court Justice.