Religion, Politics, and the Supreme Court
Presidents get to nominate persons to the Supreme Court and Senators get to question and confirm those picks. Once upon a time, not so long ago, it took a minimum of sixty votes to confirm a justice pick. That all began to change a decade back when that sixty-vote margin began to erode as differing parties changed the rules. So, now all it takes is a majority vote to sustain a nomination for a life-long appointment. That comes into play now, as the Senate will take up the nomination of Amy Coney Barrett for a seat on the Supreme Court. At age forty-eight, she is likely to be on the court for decades, perhaps long after my demise. She will tilt the Court well to the right, as she replaces Ruth Bader Ginsburg.
Before I go further, I want to note that on a whole host of issues I stand well apart from the nominee. I have deep concerns about the future of the Court as it addresses matters of immigration, health care, civil rights, voting rights, the environment, and more. If I was allowed to vote on this matter, I likely would vote no, not because of her religion, but because of her judicial philosophy. I also think that based on the actions taken in 2016, that the Senate should wait to vote on confirmation until after the election. Let the people decide was Mitch McConnell’s mantra in 2016. If Donald Trump wins, then go ahead, confirm her. If he doesn’t win, then let Joe Biden nominate someone once he takes office. Of course, that’s not the way it will work, at least I don’t think so. It appears there are enough votes to confirm her.
This leads to my point. When Barrett appeared before the Senate in 2017, much was made of her religious affiliation. Mention has been made already, this time around. Barrett is a devout Roman Catholic and an opponent of abortion, which one expects is rooted in her Catholic faith. Now, when Barrett comes before the Senate her views on a whole host of issues will come up, and religion could be one of them. With that in mind, when it comes to religion, not all questions are the same.
Opponents of the nomination need, in my opinion, to be careful in how they frame their responses. That she is Roman Catholic doesn’t disqualify her. After all, Joe Biden is Roman Catholic, as is Justice Sonia Sotomayor. That she is part of a Charismatic Catholic group doesn’t disqualify her either. People of faith, whether Roman Catholic, Protestant, Jewish, Muslim, Hindu, will be influenced by what they believe. It will be part of them, but a judge is supposed to look at the Law and rule on it. That is how this nominee should be judged. When it comes to the questioning of the nominee, with religion on the mind of many, I believe that Melissa Rogers, author of Faith in American Public Life, (Baylor University Press, 2020) has put her finger on the crux of the issue in a series of tweets that I’ve copied and pasted below. Just a note, Rogers served as an advisor on religious matters in the Obama White House.
Barrett co-wrote a law review article on the intersection of religion & judicial ethics, so it's fine to ask her about that piece. Also fine to ask every nominee whether he/she'd be unable to support the Constitution for any reason, including any personal beliefs/affiliations. But Senators should not take it upon themselves to characterize a nominee’s religious beliefs and practices. They also should not ask any question that might suggest that they would qualify or disqualify a nominee simply because of her faith, or lack thereof. In an earlier confirmation hearing for Barrett, Senator Feinstein crossed both of those lines. At one point, Feinstein said to Barrett: “[T]he dogma lives loudly in you, and that’s of concern . . .” That's a troubling statement. It's also dumb from a political standpoint. If Senators wish to ask Barrett about her law review article, open-ended, neutral questions would be best. Senators could ask Barrett what she intended to say with her article and the relevance of those views, if any, for her potential service as a Supreme Court justice. (https://twitter.com/melissarogers)
I decided to post this because I’m concerned that religion will become a partisan football, that will be a detriment to both religion and to statecraft. The nation promises religious liberty, though that freedom has limits, in that one is free to believe what one wants, but one is not free to engage in practices that harm others. Rogers’ words of wisdom are helpful and should be heeded by the Senators and by us.