President Trump’s nomination of Amy Barrett to fill the vacancy on the Supreme Court with the death of Justice Ruth Bader Ginsburg raises the question of the fitness of a Catholic to fill a position of public trust that dates from controversies surrounding the candidacy of Al Smith in 1928 and John Kennedy in 1960 to serve as U.S. president because both were Catholics.
The Catholic question was not raised with the nomination of Brett Kavanaugh to the Supreme Court because those who opposed his nomination felt that he would be rejected on the claims made by several women that in his youth and later on he sexually assaulted them.
Some of Barrett’s adversaries may snicker that a woman with seven children is unfit to take a seat on the Supreme Court but if memory serves no one considered Antonin Scalia unfit for having nine children. The issue before the Senate Judiciary Committee and the full Senate if the Committee votes favorably on her nomination is her position on how the Constitution is to be applied in any dispute put to the Court. Is the Constitution a living document that requires a justice to interpret it according to contemporary values and circumstances, and to re-interpret it as those values and circumstances change? This is the position taken by her judicial-activist adversaries.
More than 100 years ago, Irish immigrant bartender Mr. Dooley, a fictional character created by American journalist Finley Peter Dunn, famously said that the Court follows the election returns. Putting aside the details as to whether Barrett is an originalist, strict constructionist, or textualist, for our purposes it is enough to say that she is not a judicial activist as defined by Mr. Dooley, and does not follow in the footsteps of Justice Ginsburg. She openly acknowledges that she follows Justice Scalia for whom she served as a law clerk.
In the Senate hearings in 2017 in which Barrett had been nominated for a seat on the Seventh Circuit Court of Appeals, Senator Dianne Feinstein asserted that “[Catholic] dogma lives loudly in you” thereby resurrecting the issue as to the fitness of a Catholic to serve in high office. Barrett replied that she would “never impose my own personal convictions upon the law” but that will not prevent her current opponents from raising the Catholic issue.
Simply put, her detractors know that in the end the issue is Roe v. Wade, and that as a Catholic Barrett might rule that it is unconstitutional, perhaps referring back to Justice William Rehnquist’s opinion in 1973 that the Court’s majority ruling was “an exercise in raw judicial power.”
The Scriptures admonish us to “render to Caesar the things that are Caesar’s and to God the things that are God’s.” As a judge, what does Barrett owe Caesar? Most fundamentally, it is not to take on the role of legislator. It is instead to rule on disputes put to her as a judge all the while keeping her personal convictions to herself. What then does Barrett owe God? As a Catholic it is to remain faithful to the Church’s teaching that all men and women are created in image and likeness of God and other central tenets of the faith to the effect that Christ is the second person of the Trinity, that he erased her sins by his crucifixion and death, that he rose from the dead as Christ. Barrett along with other Catholics are expected to affirm those beliefs in their family gatherings and in the church where they worship.
What makes Senator Feinstein fearful is that Barrett holds to the conviction that all men and women are equal and that the unborn, whether male or female, are included as equals for two reasons. First, biological science shows unequivocally that the very same DNA structure present after birth is present before birth, in fact from the time of fertilization. Second, if the unborn are excluded from the equal protection clause of the Constitution, when do they qualify and who decides when they become persons before the law and are entitled to the protection of the law?
Feinstein along with many others insist that the mother gets to decide the question of equality and personhood and the Court ought not interfere. Silently they use the very same antebellum argument that the slaveholder gets to decide if the Negro is property and therefore not entitled to the protection of the Constitution. But abortion is much worse than slavery because the slave is valued only when he is kept alive whereas the unborn is denied even that status.
Feinstein and others in the Senate will be hard pressed to articulate specifically which aspects of Barrett’s beliefs will impact her rulings on the Court. The Trinity, the crucifixion, the resurrection, the real presence in the Eucharist? They will have to find her unfit for some other reason. Perhaps because she’s not Ruth Bader Ginsburg. Or she’s just too conservative. Or she’s hostile to Obamacare. Or she’s the nominee of a president whom many despise.