Thank God for Amy Coney Barrett
President Trump has, as expected, nominated Amy Coney Barrett, U.S. District Court of Appeals Judge for the Seventh Circuit, to take the late Justice Ruth Bader Ginsburg's seat on the Supreme Court.
Coming as it does only a little more than a month from a presidential election, and especially given the refusal of a Republican Senate to consider President Obama's nomination of Judge Merrick Garland to fill the late Justice Antonin Scalia's seat of the Court in an election year, the hypocrisy involved in another Republican Senate being poised to do exactly that in Judge Barrett's case is remarkable, especially since several of her Republican supporters in the Senate vowed to oppose any nominee put forward by a Republican president under such circumstances when they refused to consider Judge Garland.
Hypocrisy and broken promises aside, the replacement of Justice Ginsburg with Judge Barrett would shift the balance of power decisively to the right. It would mean a clear 6-3 majority for the judicial philosophy President Nixon called "strict constructionism" and Justice Scalia termed "originalism." That philosophy holds that the Constitution should, as closely as possible, be interpreted in light of the plain meaning of the text and, as far as it can be determined, the intent of the Founders. It stands in contrast to the "living Constitution" theory that the Court has largely followed for several decades, which sees the meaning and implications of the text changing and evolving over time to reflect the changing standards and mores and issues of each successive era.
Prepare for fireworks in the confirmation hearings. Judge Barrett is a devout Roman Catholic of charismatic inclinations. Throughout her career, her personal support of the teachings of her church on matters of sexuality, marriage, and other matters has been cited by social liberals as a reason for alarm despite her clear and repeated assertion that a judge's personal beliefs and preferences ought never to influence her interpretation of the law. She did remark once that a Roman Catholic judge faced with a situation in which following the law would mean violating the church's teaching- specifically, in which a Catholic judge might have to allow an execution to go forward despite the current Catholic teaching opposing capital punishment- should recuse herself. Sen. Diane Feinstein, in the hearings leading to Judge Barrett's confirmation for the U.S. Circuit Court of Appeals, suggested that this would constitute interference by the judge's religious convictions in the performance of her duties. Judge Barrett disagreed.
That exchange touches on what is likely to be the most contentious issue in connection with Judge Barrett's nomination: religious bigotry on the part of secularists. Article Six of the Constitution is quite clear:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Yet the belief seems widespread on the left that any Federal official who consults his or her religious convictions in the performance of his or her duties is in violation of the separation of church and state, even if, as in the case suggested by Judge Barrett, he or she takes care to prevent those convictions from coloring his or her official decisions and actions and giving them the force of law. Essentially, this belief seems to come down to the idea that it's okay for our government officials to have religious beliefs, but only as long as they don't allow themselves to be influenced by them! It isn't enough that they not be allowed to color their official actions; Judge Barrett specified that the Catholic judge in question should recuse herself rather than place herself in a position in which she would have to either impose her religious beliefs on the law or violate them. But that was not enough for Sen. Feinstein. For her, to allow one's religious beliefs to influence one's behavior in any way in the political or legal realm is to violate the separation of church and state.
In other words, only hypocrites need apply.
But it's not merely the Sixth Amendment this idea flaunts. It's also the First, which explicitly forbids Congress not only to pass laws regarding "an establishment of religion," but also laws "prohibiting the free exercise thereof." The First Amendment forbids judges, legislators, and other government officials giving specifically religious beliefs the force of law. But the Constitution not only does not forbid them to conduct themselves according to their personal religious beliefs as long as they refrain from doing that but prohibits any attempt to limit that freedom!
This comes close to the heart of the current controversy regarding the relationship between personal religious convictions and public governance. Late in the Obama Administration, it even became fashionable to speak of "freedom of worship" rather than "freedom of religion," implausibly implying that the First Amendment only had force within the walls of a church or synagogue!
We are a religious people in the process of evolving into a far more secular one. That is a point of deeply-felt contention on both sides of the divide. But secularist overreach is more and more seeking to stigmatize any role for religious convictions outside of the mind and heart. Such a restriction doesn't simply go beyond what the Constitution requires; it enters into territory both the First and Sixth Articles of the Consitution specifically forbid.
Since I am a traditional, liturgical Lutheran, neither Judge Barrett's Catholicism nor her charismatic tendencies are my theological cup of tea, any more than the more elaborate Pentecostalism of Vice-President Pence or Sen. Ted Cruz. Yet I have to emphatically reject and oppose the widespread and open mockery of their religious beliefs by some Democrats and leftists. I, too, find many religious beliefs held in good faith by some of my fellow Americans to be outlandish. That is why I do not share them. But as long as they don't try to make them into law, the tolerance without which a pluralistic society cannot function demands that I respect their right to hold them. It is their lack of such respect that clearly labels those who mock them as bigots and their position as genteel intolerance.
The greatest obstacle to Judge Barrett's confirmation will be intolerance and religious bigotry on the part of those who are quick to charge others with intolerance, sometimes legitimately and sometimes not. To be sure, the number of Republican senators who will be breaking their word to support her nomination is distasteful. And the sheer panic of those of a political philosophy about to lose its control over the nation's final arbiter of the law will play a huge role in motivating the opposition to Judge Barrett. But I rejoice at the appointment of an originalist judge of her stature, and the reclaiming of the Court for a philosophy which sees its role as the interpreter of the Constitution rather than as a standing and unelected Constitutional Convention which quite actively and assertively does what it accuses Judge Barrett of wanting to do, even though she warns strongly against it: using its power and authority to impose the values and beliefs of the justices on the rest of us.
For years ago, I strongly opposed the election of Donald Trump, a notoriously corrupt, erratic, ignorant, and clownish dilettante lacking the good sense to recognize his own limitations and listen to those who knew more than he did. Many who disagreed with me, including quite a few who acknowledged the validity of my objections to Mr. Trump, cited the Supreme Court as their reason for supporting him despite his shortcomings. And while I wouldn't agree that the damage Mr. Trump has done to the social fabric of America, its alliances, it's reputation and influence in the world, its cohesiveness as a society, its political stability, or its ethics has been worth it, I acknowledge the transformation of the Court accomplished by the appointments of Justices Gorsuch and Kavanaugh with gratitude. And I acknowledge the appointment and impending confirmation of Judge Barrett with equal gratitude. Ironically, one of the outcomes of the presidency of a man who does not believe that the law or ethical standards or rules of conduct of any kind should apply to him and that he should ever be accountable to anybody is that we will once again have a Supreme Court which sees itself as a servant of the law in general and of the Constitution in particular, rather than as their master.
But let's be very plain about this: with the confirmation and swearing-in of Amy Coney Barrett, any rational excuse for voting for a second term for Donald Trump will evaporate. As I've said before, there is a pro-life majority on the Court now, and if it were going to have taken up Roe v. Wade, it would already have done so. It has had two chances since Justices Gorsuch and Kavanaugh joined the Court, and it has declined to take them.
Despite a 6-3 pro-life majority on the Court, it will not take it up with Justice-to-Be Barrett joining them, either. Until the attitude of the American people toward abortion changes, the Court isn't going to undo Roe v. Wade or even seriously modify it. The real battle over abortion needs to continue to take place in the hearts and minds of individual Americans. Only when that battle is won will the Court change the law.
But with Amy Coney Barrett and a 6-3 originalist majority on the Court, at least the secularist left will have a harder time maintaining its transparently bogus argument that anything that can be favored opposed on religious grounds cannot be advocated or opposed on purely secular ones without those who do so "imposing their religious beliefs on others."
At long last, "pro-choice" Americans will face at least a little difficulty taking the easy way out and have to defend their position on its merits rather than by falsely stigmatizing the arguments of their opponents. Perhaps at least some of them will finally acknowledge what the battles over slavery and civil rights and child labor and a dozen others led by religious Americans should by now have already taught us: that the separation of church and state does not mean the separation of religiously-motivated ethical concerns from either public discourse or the consciences of our public officials.
Photo: The University of Notre Dame
But it's not merely the Sixth Amendment this idea flaunts. It's also the First, which explicitly forbids Congress not only to pass laws regarding "an establishment of religion," but also laws "prohibiting the free exercise thereof." The First Amendment forbids judges, legislators, and other government officials giving specifically religious beliefs the force of law. But the Constitution not only does not forbid them to conduct themselves according to their personal religious beliefs as long as they refrain from doing that but prohibits any attempt to limit that freedom!
This comes close to the heart of the current controversy regarding the relationship between personal religious convictions and public governance. Late in the Obama Administration, it even became fashionable to speak of "freedom of worship" rather than "freedom of religion," implausibly implying that the First Amendment only had force within the walls of a church or synagogue!
We are a religious people in the process of evolving into a far more secular one. That is a point of deeply-felt contention on both sides of the divide. But secularist overreach is more and more seeking to stigmatize any role for religious convictions outside of the mind and heart. Such a restriction doesn't simply go beyond what the Constitution requires; it enters into territory both the First and Sixth Articles of the Consitution specifically forbid.
Since I am a traditional, liturgical Lutheran, neither Judge Barrett's Catholicism nor her charismatic tendencies are my theological cup of tea, any more than the more elaborate Pentecostalism of Vice-President Pence or Sen. Ted Cruz. Yet I have to emphatically reject and oppose the widespread and open mockery of their religious beliefs by some Democrats and leftists. I, too, find many religious beliefs held in good faith by some of my fellow Americans to be outlandish. That is why I do not share them. But as long as they don't try to make them into law, the tolerance without which a pluralistic society cannot function demands that I respect their right to hold them. It is their lack of such respect that clearly labels those who mock them as bigots and their position as genteel intolerance.
The greatest obstacle to Judge Barrett's confirmation will be intolerance and religious bigotry on the part of those who are quick to charge others with intolerance, sometimes legitimately and sometimes not. To be sure, the number of Republican senators who will be breaking their word to support her nomination is distasteful. And the sheer panic of those of a political philosophy about to lose its control over the nation's final arbiter of the law will play a huge role in motivating the opposition to Judge Barrett. But I rejoice at the appointment of an originalist judge of her stature, and the reclaiming of the Court for a philosophy which sees its role as the interpreter of the Constitution rather than as a standing and unelected Constitutional Convention which quite actively and assertively does what it accuses Judge Barrett of wanting to do, even though she warns strongly against it: using its power and authority to impose the values and beliefs of the justices on the rest of us.
For years ago, I strongly opposed the election of Donald Trump, a notoriously corrupt, erratic, ignorant, and clownish dilettante lacking the good sense to recognize his own limitations and listen to those who knew more than he did. Many who disagreed with me, including quite a few who acknowledged the validity of my objections to Mr. Trump, cited the Supreme Court as their reason for supporting him despite his shortcomings. And while I wouldn't agree that the damage Mr. Trump has done to the social fabric of America, its alliances, it's reputation and influence in the world, its cohesiveness as a society, its political stability, or its ethics has been worth it, I acknowledge the transformation of the Court accomplished by the appointments of Justices Gorsuch and Kavanaugh with gratitude. And I acknowledge the appointment and impending confirmation of Judge Barrett with equal gratitude. Ironically, one of the outcomes of the presidency of a man who does not believe that the law or ethical standards or rules of conduct of any kind should apply to him and that he should ever be accountable to anybody is that we will once again have a Supreme Court which sees itself as a servant of the law in general and of the Constitution in particular, rather than as their master.
But let's be very plain about this: with the confirmation and swearing-in of Amy Coney Barrett, any rational excuse for voting for a second term for Donald Trump will evaporate. As I've said before, there is a pro-life majority on the Court now, and if it were going to have taken up Roe v. Wade, it would already have done so. It has had two chances since Justices Gorsuch and Kavanaugh joined the Court, and it has declined to take them.
Despite a 6-3 pro-life majority on the Court, it will not take it up with Justice-to-Be Barrett joining them, either. Until the attitude of the American people toward abortion changes, the Court isn't going to undo Roe v. Wade or even seriously modify it. The real battle over abortion needs to continue to take place in the hearts and minds of individual Americans. Only when that battle is won will the Court change the law.
But with Amy Coney Barrett and a 6-3 originalist majority on the Court, at least the secularist left will have a harder time maintaining its transparently bogus argument that anything that can be favored opposed on religious grounds cannot be advocated or opposed on purely secular ones without those who do so "imposing their religious beliefs on others."
At long last, "pro-choice" Americans will face at least a little difficulty taking the easy way out and have to defend their position on its merits rather than by falsely stigmatizing the arguments of their opponents. Perhaps at least some of them will finally acknowledge what the battles over slavery and civil rights and child labor and a dozen others led by religious Americans should by now have already taught us: that the separation of church and state does not mean the separation of religiously-motivated ethical concerns from either public discourse or the consciences of our public officials.
Photo: The University of Notre Dame
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