“Whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, 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 for years in this country.”That got a big reaction, including the charge that it violates the constitutional demand that "no religious test shall ever be required as a qualification to any office or public trust under the United States."
Is "dogma" a dog whistle, expressive of anti-Catholic bias or does it aptly characterize a person with fixed beliefs that interfere with understanding law in a properly judicial way? As Stone and Segal put it:
Senator Feinstein was not suggesting that Catholics shouldn’t be judges. She was asking whether someone of deep faith and who had previously openly (and in our opinion eloquently) written about the relationship between judging and faith could cast aside her deeply held views when judging. Had Ms. Barrett said that her faith would in fact deeply influence her judging, would the question have been deemed so wrong? We think not.The main problem with this kind of questioning is that it is so routine and so routinely answered. We're being asked to rely on the decisions that will come from the mind of this nominee. That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee.
Likewise, if senators had asked Justice Ruth Bader Ginsburg during her confirmation hearing if her long history litigating claims of gender discrimination would influence her judging, or if they had asked Chief Justice John Roberts whether his time working in the Bush administration would affect his decision making, no one would have blinked.
Judges regularly decide difficult legal issues in which the law at issue is unclear. In those open spaces, a judge’s personal values and life experiences will inevitably play a role in the outcome of the case. Given that Ms. Barrett had previously explored the relationship between her deeply held religious views and judging, Ms. Feinstein acted well within the bounds of fair questioning to probe deeply on this question.
To create a special immune, untestable zone is absurd.
A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down just like a candidate who revealed that he'd go by "what decision in a case was most likely to advance the cause of socialism."
I'd like to think that a religious person has a strong moral core that would preclude that kind of dishonesty, but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees. That would be religious discrimination!
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131 comments:
Doesn't Barrett's writing on the issue of faith vs. justice indicate that a judge should recuse herself? Does she ever say that faith should override the fairness of justice? My understanding is, no.
Yes, it's anti-Catholic.
Yes, it tells judges to never write or contemplate ethical issues in a public manner. We prefer judges who keep these very important issues in the closet, otherwise we'll punish them.
If she brought up a specific case where her religion was explicitly a factor, it's ok, but a broad brush like that sure sounds like a religious test.
".... the dogma lives loudly within you,...."
Words matter, and this poetry was out of bounds.
Feinstein trying to dog-whistle but lacks the range. All we hear is her loud dogma barking in the alley.
Exactly, Kate, let's see what we're getting.
The dogma that you know about isn't a problem. You simply turn it off for judging.
The dogma that you don't know about is the problem.
Klavan for example dogmatizes Christianity, so his explanations of spirituality are shit.
He could easily do so much better taking Christianity as literary and getting to some interesting truths by discovering them instead.
Here's what the Prs. of Princeton had to say. I think his argument very convincing.
Dear Chairman Grassley and Ranking Member Feinstein:
I write, as a university president and a constitutional scholar with expertise on religious freedom and judicial appointments, to express concern about questions addressed to Professor Amy Barrett during her confirmation hearings and to urge that the Committee on the Judiciary refrain from interrogating nominees about the religious or spiritual foundations of their jurisprudential views.
Article VI of the United States Constitution provides explicitly that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This bold endorsement of religious freedom was among the original Constitution’s most pathbreaking provisions. The Supreme Court’s unanimous decision in Torcaso v. Watkins (1961), holding that the First and Fourteenth Amendments render this principle applicable to state offices and that it protects non-believers along with believers of all kinds, is among the greatest landmarks in America’s jurisprudence of religious freedom. Article VI’s prohibition of religious tests is a critical guarantee of equality and liberty, and it is part of what should make all of us proud to be Americans.
By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state, or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s “no religious test” clause.
I am sympathetic to the challenges that your committee faces as it considers nominees to the federal bench. In my book The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press, 2007), I argued that your committee need not defer to presidential nominations, and that the Constitution permits senators to probe the judicial philosophies of nominees. It is, however, possible to probe those philosophies without reference to the religious affiliation or theological views of a nominee, and Article VI insists that the Senate observe that restriction.
The questions asked of Professor Barrett about her Catholic faith appear to have been provoked in part by her co-authored article, “Catholic Judges in Capital Cases” (1998). I have read that article, and I believe that the views expressed in it are fully consistent with a judge’s obligation to uphold the law and the Constitution. As a university president committed to free speech, academic freedom, and religious pluralism, I must add that, in my view, Professor Barrett’s qualifications become stronger by virtue of her willingness to write candidly and intelligently about difficult and sensitive ethical questions: our universities, our judiciary, and our country will be the poorer if the Senate prefers nominees who remain silent on such topics.
I am deeply concerned by the harsh and often unfair criticisms that are now routinely levelled from both sides of the political spectrum against distinguished judicial nominees who would serve this country honorably and well. On the basis of her accomplishments and scholarly writing, I believe that Professor Barrett is in that category. She and other nominees ought in any event to be evaluated on the basis of their professional ability and jurisprudential philosophy, not their religion: every Senator and every American should cherish and safeguard vigorously the freedom guaranteed by the inspiring principle set forth in Article VI of the United States Constitution.
Respectfully submitted,
Christopher L. Eisgruber
I'm Catholic and I didn't see anything wrong with the question. I read it as a compliment, if unintended. Obviously deeply held beliefs religious or otherwise would influence a judges thinking and decisions. They are practically nominated specifically because their world view approximates that of the President. I expect there are more judges tightly wedded to a particular ideology than any religion and maybe more should be made of that.
I thought we settled this anti Catholic prejudice--for that is what Senator Di Fi is expressing, when we elected JFK.
Liberals are constantly projecting their own vile bigotry on normal people.
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." -- Sonia Sotomayor
That statement seems problematic, if the Latina bitch were to judge the actions of white men in any court case brought before the Supreme Court. But, that's just me.
I was having a talk with a socially conservative friend the other day about same-sex marriage and abortion. While support for SSM has experienced a meteoric rise in the last few years, opinions on abortion have been stubbornly stable for decades. And that's why Roe v. Wade has been such bad jurisprudence. Whatever one thinks about homosexuality, the notion of two gay men marrying is simply never going to elicit the kind of visceral moral unease many people feel at the thought of destroying a fetus. And so now, here we are more then 40 years removed from the decision, and the most important question anyone seems to care about a nominee is what their beliefs and feelings on abortion are.
Nominal Christians are fine.
It's actual Christians we need to worry about.
We don't want any table flipping.
Comanche Voter: I think the anti-Catholic bigotry is only waived for Democratic candidates. IMHO.
What if you questioned a judge's karma?
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." -- Sonia Sotomayor
That statement seems problematic, if the Latina bitch were to judge the actions of white men in any court case brought before the Supreme Court. But, that's just me.
Not just you. Bigotry is given a pass when it comes to the left, minorities and feminists.
I think this article is pretty relevant to the question raised.
http://www.huffingtonpost.com/ronald-a-lindsay/supreme-court-catholic-justices_b_5545055.html
"... the dogma lives loudly within you..."
Very Yoda.
I am Laslo.
...if senators had asked Justice Ruth Bader Ginsburg during her confirmation hearing if her long history litigating claims of gender discrimination would influence her judging...
Wait- nobody asked???
I don't have a problem with Senator Feinstein's questions. I just wonder if she would be similarly questioning of a left-wing secular humanist when it came to cases even marginally involving religion.
In a similar vein, would she question a Catholic judge who fully embraced liberation theology?
J. Farmer: interesting observation. Yes, I think most of us are more tolerant of the choices made by consenting adults that affect mostly themselves, than we are of choices that consist of little more than destroying (or not) a third party who cannot consent. Strange how the latter situation continues to haunt our moral and legal discourse.
I think that the push-back that Feinstein has received is completely fair, and that it is also fair for you to offer push-back to the push-back. However, I think that in performing it, you actually reveal the weakness of Feinstein's case. What Barrett's past speeches and writings reveal or seem to reveal is that she is very thoughtful about the relationship between her faith and the law, and this, rather than clever answers to clever questions by senators, gives us as much reason to think she can competently operate as a judge as we can get -- whereas I know of few, or no, such exercises of thoughtfulness by judges who are devoted to secular ideals, in which they attempt to separate their ideals from their understanding of the law. That "testing" that can't happen enough is something that barely happens at all in those cases, because it could only occur if the person were bold enough to carry it out in public prior to any such appointment.
Your argument also, paradoxically, by making Feinstein's case as positively as possible, seems to make it sound more, not less, like the old complaint that has always been raised against Catholics serving in public office, which is that they answer to some other "power" beyond the people and laws of the United States. In the past, it was the specter of the Pope that was invoked in such fear-mongering. Feinstein's argument instead seems to depend on making it seem fearful that Barrett could have devotion to any higher authority at all, including God; I don't see how the logical consequence of Feinstein's line of argument is not actually and objectively to bar all religious believers whose faith is not basically a civil religion from public office. This strikes me as a very bad thing.
Does Ms. Feinstein, with her secular-Jewish values, know that Evangelical Christians, who make up the majority of Protestant congregations, are just as opposed to abortion as are Catholics? Not that it would matter to her because the right to murder an unborn child is far more important than anyone's religious values.
Did Feinstein just violate Barrett's civil rights?
The force is strong in this one...
She should have said, "The dogma barks loudly within you."
"I don't have a problem with Senator Feinstein's questions. I just wonder if she would be similarly questioning of a left-wing secular humanist when it came to cases even marginally involving religion."
She probably wouldn't, but a conservative Senator would.
".... the dogma lives loudly within you,...."
That charge can also be raised against Feinstein - just a different dogma.
Alexander: excellent point. There is an asymmetry here. It is easy to harass a Catholic or other adherent whose faith is "visible" and very hard/impossible to examine the implicit, unlabeled, collection of views and values that a secular mind will collect and rely upon. So quite apart from bigotry, we have a simple problem of accessibility of beliefs to Senatorial review.
Quite obviously I am no scholar of the Constitution or its authors but I think they lived in a world where religious belief was for most people an existential matter. God, Providence, the Deity --the name and the content of belief would vary, but some higher authority was present and was expected, as an important check on human nature. They could (and they needed to) prohibit religious tests, because they lived in a world where religious conscience would operate. Whether it was Baptist, Catholic, Anglican or something else, was secondary and would not be allowed to poison the debate with partisan probing and exclusion.
Do we live in that world? I think not.
The Senators are political. They are elected politicians. But they have to act as though they care about proper judicial methodology, and they do because it works politically. The vast majority of Americans think judges are supposed to operate in a sphere beyond political. It's some complex theater with a core of commitment to the rule of law.
Are you now or have you ever been a member of the Communist Party?
No? Rejected!!!!
Ann, in theory I agree with you. However, that requires me to assign a good faith motive to Dianne Feinstein. Given the recent activities of the Democratic Party and their supporters, especially in California, it is impossible to provide that leeway. This sounds less like "do your biases influence your decisions" and far more like "devout Catholics should not be allowed to be judges" possibly extended to "devout Catholics should not be allowed to have jobs." I am quite certain that Feinstein was not ignorant of that impression. The only benefit of the doubt I can provide is this application is not Catholic specific but also applies to all devout traditional Christians and probably devout Orthodox Jews.
Muslims, of course, can believe whatever they want and will never be questioned.
hmm, Sotyomeyer's public statements???
She should have responded with, "I find your lack of faith disturbing."
Also, if I was told that my Christian beliefs lived loudly in me, I'd take that as a compliment.
Owen said...
Comanche Voter: I think the anti-Catholic bigotry is only waived for Democratic candidates. IMHO.
And DiFi wants women Judges also, just the right kind of women...
Also my toad like Senator Durbin who is very good at dog whistle: ""Senator Durbin asked directly, 'Do you consider yourself an orthodox Catholic?'"
The dogma of unfettered abortion on demand lives loudly within Feinstein.
@mockturtle:
Does Ms. Feinstein, with her secular-Jewish values, know that Evangelical Christians, who make up the majority of Protestant congregations, are just as opposed to abortion as are Catholics?
Incidentally, only two religious groups are represented on the court. There are 6 Roman Catholics and 3 Jews.
Ah, ha, she is being outed as a Christian Supremacist. The only supremacy protected by Dems since Saudi Arabia unloaded their petro dollar political donation avalanche 30 years ago is Sharia Blasphemy Law openly intended to exterminate terrible Christian thinking.
A nominee with a mind entirely devoted to religion...
Is the start of a weak straw man argument. No one who is working at a secular job is 100% devoted to their religion. Further, the nominee in question explicitly wrote the correct way to handle this in the very law review article the odious Feinstein referenced. I do not find her phrase carefully worded. And in this case I find your analysis flawed.
Ann, this is a woman who has specifically addressed this very issue, and has pledged to recuse herself from cases where her faith and the present state of the law came into conflict! She is the poster girl for how to do this right. I can't imagine why DiFi is putting her through the wringer, unless it's as an example of what happens to a Catholic judge, no matter how careful, no matter how thoughtful, in a country where abortion is the one right that must never be gainsaid.
And yes, I know that there are six Catholics on SCOTUS.
Feinstein's point reinforces the view that Muslims should not be allowed to immigrate to the US. The concern is that people will act on their ideology. Muslim immigrants should have to go through Senate hearings to probe their ideological views and commitment to those views before getting a green card.
Forget recusal based on religious belief. If you won't issue a ruling because it conflicts with your religious belief, then either don't take the job or resign.
"The vast majority of Americans think judges are supposed to operate in a sphere beyond political."
Not anymore, I think. Especially with regard to the Supreme Court. Most Americans recognize that the SC has been politically weaponized. People now vote for president based on how the candidates will fill SC vacancies. I did.
While it's true that a conservative senator would inquire about the left-wing secular biases of a nominee, we have reached the point in our society at which we erroneously assume that any kind of religiously motivated behavior is somehow less constitutionally acceptable than non-religiously motivated behavior. The constitutional provisions about religion were meant to protect its practice, not prevent it. Even Bill Clinton got it right: "Freedom of religion, not freedom from religion."
Who cares if her decisions would be influenced by her Catholic belief? Any judge's decisions will be influenced by whatever belief system he or she adheres to, and the notion that the areligious, uniquely, aren't beholden to their beliefs — be they feminism, communism, socialism, gay rightsism, wise Latinaism, or what have you — is simply wrong.
Of course, we know the real subject of this line of questioning, as J. Farmer points out above: abortion. Left-wing politicians can't abide the thought that the horrific justification of infanticide foisted on the nation by its judges might one day be questioned or overturned by its judges.
Who cares if her decisions would be influenced by her Catholic belief?
A lot of secularists have decided that religious belief is irrational and therefore has no place in the public square. Its that simple.
It has become a commonplace, and has been mentioned on this blog, that nominees for SC since Bork have hidden their actual views as much as possible. Ginsburg sprang out of the box once she was confirmed and said "Surprise!" Roberts perhaps similarly. Anyone who is conscientious enough to indicate some cases they will find personally difficult is just asking for trouble--sticking their heads out of the foxhole.
We all love stories about judges who say to the accused: I disapprove of you in every way possible, and I even think you probably committed the crime, but the prosecution has simply failed to prove their case. Dismissed. It is reasonable to want some assurance a judge can do that. Here in Ontario, Canada we had a pathologist who was convinced that cases of child battering leading to death were under-reported (probably true) and that he was just the guy to do something about it (oh oh). He concluded that murders had been committed when in fact a child had died in an accident; innocent people (usually parents) served long prison sentences. His so-called science was terribly biased. It turned out he only trusted church-goers in lasting marriages, like himself.
And yes, today it's really (usually) all about abortion. Is it only religious people who are likely to say: it is a mis-reading of the Constitution to say it protects a right to abortion? Bork said that.
They would never ever ask a Muslim the same question. EVER. Just Jews and Christians.
If she was applying for any other job, and the boss running the interview said this shit, she would have one hell of a lawsuit. And she would win it. Easily.
Different standard for Senators then the rest of us.
Just substitute homosexuality for Catholicism and see how this sort of question would fly. It's clearly a bigoted question.
They would never ever ask a Muslim the same question. EVER. Just Jews and Christians.
If you are a woman and it goes through your mind to wonder if you would get a fair day in court from a member of a religion that believes that you are inferior and unclean, you are a bigot and an islamophobe.
(Sidebar: I certainly wondered about the 900 year old Hispanic Catholic judge, married for decades, who presided over my divorce case. He was fair, though.)
Interestingly enough, Feinstein graduated from a Catholic high school (Convent of the Sacred Heart). What did the nuns do to her that 56 years later she still hates Catholics and Catholicism?
“Whatever a religion is, it has its own dogma. The law is totally different.
No acolyte of Critical Law Theory could read those words & believe them. "The law is totally different"? Really? Strange how those judges with "no dogma" seem to come up over & over with judicial decisions that jive with their political views. Oh, but then, it's a "guiding judicial philosophy", not a "dogma".
Some upthread contend that abortion is the unstated agenda. I had missed that. If it is true, then in American Constitutional jurisprudence, abortion has been the unexpelled fetus. For over forty years.
Sorry to be so graphic but there it is.
"and that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.” If the question had been, "Can you judge strictly according to the law, or will your religious beliefs require you to nullify the law?" I would think it was a perfectly reasonable question.
But that wasn't the question. The question was, "I don't care about the law. I care about 'big issues that large numbers of people have fought for for years in this country.' You have no right to oppose my views on those issues for any reason."
I didn't think this was such a big deal until I read in the OP that the question was "phrased very carefully." Some pointed questioning on the topic was completely reasonable. But if DiFi thought long and hard and this is what she came up with, I think the question says more about her than any reasonably foreseeable response would say about the nominee. Then again, it's not at all unusual for politicians to use such opportunities mainly to communicate about themselves.
Feinstein's interrogation of Barrett was about abortion and nothing else.
Feinstein's interrogation of Barrett was about abortion and nothing else.
No, you're missing it. There are plenty of non-Catholics who are pro-life. I'm pro-life. I'm not Catholic. There are Jews who are pro-life, atheists who are pro-life.
Feinstein has developed anti-Catholic animosity because she, in her warped and bigoted view, thinks of pro-lifers as Catholics. And she wants other people to hate on Catholics, too. She's demonizing Catholics.
@Saint Croix,
Disagree. If Barrett was orthodox Catholic, but Pro-Choice (strange animal, Yes, but fairly prevalent in NorCal), Feinstein would not have cared one whit. For the Dems, judicial nominees are all about whether they will uphold Roe or are a threat to Roe. If the latter, you get Borked - for any reason.
It was all about abortion, and gay marriage too. The problem Sen. Feinstein had with that court nominee was that that she was a faithful Catholic who believed gay marriage and abortion rights go against natural law. She wasn’t one of those modernist Catholics popular with liberals and leftists who are devoted to progressive politics.
I thought we settled this anti Catholic prejudice--for that is what Senator Di Fi is expressing, when we elected JFK.
JFK was the typical political "Catholic" like Pelosi and Biden who whoops through every abortion law and then pulls a long face about some issue like Capital Punishment.
The fear these days among politicians is approving anyone who really BELIEVES their religion.
That's is why Bush was so ridiculed, one reason anyway.
darrenoia: Who cares if her decisions would be influenced by her Catholic belief? Any judge's decisions will be influenced by whatever belief system he or she adheres to, and the notion that the areligious, uniquely, aren't beholden to their beliefs — be they feminism, communism, socialism, gay rightsism, wise Latinaism, or what have you — is simply wrong.
Ron Winkleheimer: A lot of secularists have decided that religious belief is irrational and therefore has no place in the public square. Its that simple.
It's astounding how much shoddy secular progressive argument you run into that not only assumes that the secular progressive view on any issue is "rational", but that it is politically neutral. One merely has to invoke "equality", "equal protection", "equality of opportunity", or "fairness", and there is no -ism favored by secular progressives that cannot be (and has not been) declared to be the rational, "neutral", "civic" viewpoint. Therefore debate is closed, because all other viewpoints have been defined out of political existence by fiat.
Granted, DiFi is very, very old.
But pair her questioning with Dick Durbin's and you and can argue an anti Catholic bias.
Abortion is the issue here. Infanticide. Eugenics. A pillar of the prog dogma.
As Hillary Clinton said: “Laws have to be backed up with resources and political will and and deep-seated cultural codes, religious beliefs and structural biases have to be changed.”
I am sensing that the politically advantageous/compelling route is to please the most voters about the most important issue. Which seems to be abortion. As well it might be: there is nothing like having to dedicate your life to the care of another soul, flesh of your flesh etc, to climb up the priority queue, is there? So DiFi's focus makes perfect political sense.
Try to see her not as a human being but as an embodiment of the values of her constituents.
Persuasive to me.
At least Feinstein favors the death penalty. It is absurd that anyone could be pro-abortion and anti-capital punishment. More than absurd. Preposterous.
It's some complex theater with a core of commitment to Progressive ideology
FTFY
Mockturtle was first to the Sotomayor quote. A quote that expressly validates the notion that the judges personal experiences should color their interpretation of the Constitution, and law. So that bit of theater that tries to claim judges are only bound by the written documents of our government has long ago withered on the vine. In case no one is paying attention, we now have women seats on the court, along with a Black seat, and a Latino seat. So it is quite acceptable to place judges by other criteria, other than jurisprudence.
But something else that came out in these comments, need some fleshing out. Why is it that the best of legal minds all share a deep spiritual commitment to their God?
And that's why Roe v. Wade has been such bad jurisprudence.
One day we will look at Roe V Wade the way we look at Dred Scott today.
"That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee."
Interpretation: Christians are hayseeds.
No bias here.
Interesting to read the letter written by the president of Princeton, Chris Eisgruber.
Eisgruber was born Catholic, married his wife in an Episcopal church, and later discovered that he has Jewish ancestors.
Also interesting to read this NYT editorial written by Sohrab Ahmari.
Mockturtle: "It is absurd that anyone could be pro-abortion and anti-capital punishment." Disagree. The consistency lies in selfishness. One casually disclaims any interest in the innocent victim whom one abandons to the abortionist's shears. One just as casually claims an interest in the stone killer whom one saves from the hangman's gallows.
In both cases it is all about personal sentiments.
I seem to remember in 1960 Democrats lambasting people who wouldn't vote for a Democrat for president because of his Catholic religion.
"It is absurd that anyone could be pro-abortion and anti-capital punishment. More than absurd. Preposterous."
More than preposterous. Progressive.
To the left, abortion is a religious sacrament -- kinda like the dark analog to baptism.
Mind you, I don't solely blame women for this. I mostly blame young irresponsible men pushing for sex, not using birth control.
Ann Althouse said...The main problem with this kind of questioning is that it is so routine and so routinely answered.
My main problem with this kind of questioning is that it only seems to apply to CERTAIN deeply-held beliefs.
If someone's commitment to their faith is within bounds then someone's commitment to all other kinds of personal beliefs ought to also be in bounds.
I can just imagine the disgust all you nice people would express should some Senator question a nominee's "social justice" or "liberation theology" or any other Leftist-approved belief system. Those kinds of things are ok to believe in, and apparently they're ok for a person to have as guiding principles, but religious belief is somehow less appropriate.
Hoodlum Doodlum: what you said. The asymmetry is glaring.
My take is, weak people hide within the fiction of the State. Makes me admire all the more the genius of Randal
Jarrell in "The Death Of The Ball Turret Gunner."
Discuss.
Leftists and religious tests.
2 bad things that become astonishingly worse together.
Ann Althouse said... It's some complex theater with a core of commitment to the rule of law.
Yes, exactly so. Well said!
My worry is that the myth--the noble lie (Straussian or otherwise)--that we in America have historically believed (that "judges & the Judiciary" are apart from and above mere politics) falling apart will fatally damage our way of life. That's yet another reason I object so strongly to the Judicial branch taking so much power (in the form of settling questions that should be left to the other branches, "creating" rights & undermining judicial norms/precedent in order to bring about a politically-desired result) and playing such an outsized role in American life. When every important question ultimately comes down to the composition of the Court and everyone comes to believe that members of the Judiciary are little more than politicians themselves (relying on no outward framework or guide and making decisions/rulings in the same way a politician would) I don't see how our system of government can stand.
A proper respect for the rule of law, as a concept, is vitally important and is something that our culture has seemingly decided isn't necessary any more. When the President can extra-Constitutionally violate contracts to pick winners & losers, when the Court twists itself into knots and defies logic in order to come to a politically-palatable "solution," and when huge numbers of people insist that due process itself is "problematic," I fear we are in a decline that can't be stopped. I, naturally, blame most of this on the Left, but whoever is to blame it is a real problem that I don't see much of anyone addressing.
An analogy is to our participation in the UN or "international law" generally. We expend a lot of effort to maintain the fiction that UN resolutions and international rules are, themselves, meaningful. But those resolutions and rules don't have any meaning or import absent the threat of enforcement or violence from other nations, and those threats exist whether the UN or "international law" exists or not. At the bottom of it we're really governed by the same kind of power dynamic (where strong nations can, if they choose, conquer or destroy weak ones) we always have been. We as a world don't typically ACT as though that's true, though, since the fiction is more pleasant--and the benefits of acting as though it's true are usually greater for everyone--than everyone acting on the truth would be.
It is related, I think, to the disagreement many of us in this forum have with your emphasis on the importance of emotion in decision making and politics. We all understand that emotion plays a large role in everything we believe and do. If we don't respect, or pretend to respect, reason over emotion, though, the basis for resorting to reason is weakened and the results of that are likely to be very unpleasant.
Accusations of "dogma" from dogmatic Democrats.
Iowan2 asks, perhaps rhetorically, Why is it that the best of legal minds all share a deep spiritual commitment to their God?
Maybe it's because God is where law originates.
Saying that it is appropriate to question her religious orthodoxy is pure sophistry. There is no single set of beliefs that every orthodox catholic subscribes to. If there is a specific belief of Barrett that Feinstein wants to question, she should address that belief by itself, not in the context of her being an orthodox Catholic.
What the President of Princeton said (I never could have imagined myself writing that sentence before today). And Feinstein is not anti-Catholic, simply opposed to pro-Lifers. It's the sole thing that entirely unifies Democrats these days.
The question is not whether Barrett's Catholicism is relevant to her ability to discharge her judicial duties. The question is whether Feinstein's bias against Catholic values constitutes religious favoritism. Feinstein would not have dared ask similarly pointed questions of a Jew, a Muslim or a Unitarian, despite that any one of those systems of beliefs implies potential variance with US law.
Hoodlum Doodlum: what you said.
Richard said
There is no single set of beliefs that every orthodox catholic subscribes to.
I would hope the creed (you can argue Nicean or Apostolic)would be a single set of beliefs that every orthodox Catholic subscribes to! Hard to say you are orthodox if you can't buy into that! Help me understand how an orthodox christian of any type could, say, deny the divinity of Christ.
P.S. The Dogma Lives Loudly Within Me Too!
As a Protestant Christian I believe in the Nicene Creed with 'catholic' lower case; and in the Apostles' Creed if 'catholic' is lower case and 'saints' refers to all believers.
Whatever issued I may have with the RCC, I believe that this is not a time to split doctrinal hairs, as we believers are up against the gates of hell which seem to be prevailing against us.
@Earnest Prole I agree about being surprised to reference a Princeton faculty member, but I was very impressed by his presentation and am a bit surprised that Ann has not examined it on this thread.
Amen, sister Mockturtle.
And if we, whose unity and communion is flawed, can agree that there is a single set of beliefs worth subscribing to, how much more likely should that be for those who proclaim themselves not only members of the same church, but orthodox members of that community?
@iowan2:
But something else that came out in these comments, need some fleshing out. Why is it that the best of legal minds all share a deep spiritual commitment to their God?
I think this statement is wrong in a few ways. One, I don't think the Supreme Court justices are ipso facto "the best legal minds." Second, we don't really know that they "all share a deep spiritual commitment to their god." Of the nine, Breyer has been the one most often cited as a probable atheist or agnostic, though Ginsburg is also probably an atheist or agnostic and has admitted to being "nonobservant" in her Judaism. It's also worth remembering that an "out" atheist might face political hurdles, particularly if nominated by a Democratic politician, so there are already incentives in the process to point a religious person, regardless of their jurisprudence.
Michael in ArchDen asks, And if we, whose unity and communion is flawed, can agree that there is a single set of beliefs worth subscribing to, how much more likely should that be for those who proclaim themselves not only members of the same church, but orthodox members of that community?
They should, of course, but I have met 'Lutherans', for instance and more than a few Methodists who don't believe in anything contained in those creeds. These supposed 'mainline churches' have become, in large part, social justice churches rather than God-worshiping ones. It's time, I believe, to separate the chaff from the wheat. Churches who don't believe in the basic tenets of Christianity should not call themselves Christian churches.
Speaking of orthodoxy, I remember reading a piece in The American Conservative by Rod Dreher, in which he discussed the small but growing number of intellectual conservatives who were leaving western Christian tradition (Roman Catholics and Protestants) for Eastern Orthodoxy. But from their perspective (to paraphrase a cliche), they didn't leave their church, their church left them. Interestingly, this micro development in the US seems to be playing out in macro form in Europe. As organized Christianity has been systemically dismantled in Western Europe, it has become vulnerable to inundation from foreign populations that will only serve to accelerate the degree to which their civilization is tearing itself down. Conversely, on the eastern side of what used to be called the Iron Curtain, Orthodox countries, where religious attitudes remain quite adherent compared to the West, and whose populations are free the encumbrance of white guilt over a colonial/imperial history, their leaders are actually standing up for their national self-identity as European Christian citizens and are rationally saying no to population transfers of Arab and African Muslims into their country. The respectable countries of the German mega state called the EU are making all the usual noises. You know them well.
"A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down just like a candidate who revealed that he'd go by "what decision in a case was most likely to advance the cause of socialism.""
It is difficult to interpret this sentence as anything other than hostile to religion. The phrasing is odd: "with a mind entirely devoted to religion." Do you mean someone that "love[s] the Lord . . . with all [her] mind," which Jesus describes in Matthew 22:37 as the greatest commandment? Any Christian who takes her religion seriously will of course use their position to "further the principles of her religion." It would be odd to expect a Christian to act in a way that does not further the principles of their religion. You would be asking them to act against the most important commandment from their God.
And so what if she did render opinions in a way that furthers the principles of her religion? Why would you imply that anyone who acts that way cannot be a good judge? As you post notes, every nominee has points of view and biases that will necessarily impact her judging. Someone who identifies as a devout Christian is merely revealing some of her biases, which we should encourage all nominees to do.
It is entirely fair for a senator to say I won't vote to confirm this person because I do not want a devout Christian on the bench. But that is not at all the same thing as saying a devout Christian cannot be a good judge because of their world view. I am surprised that you would take the position that a devotion to Christianity disqualifies one from the bench.
If there's any group with dogma (i.e., strongly-held beliefs unproveble by rational means) that we should run from, it's the Cult of the State . . . of which Feinstein is one of the high priestesses.
Notre Dame President's letter to Feinstein:
"Dear Senator Feinstein:
Considering your questioning of my colleague Amy Coney Barrett during the judicial confirmation hearing of September 6, I write to express my confidence in her competence and character, and deep concern at your line of questioning.
Professor Barrett has been a member of our faculty since 2002, and is a graduate of our law school. Her experience as a clerk for Judge Laurence Silberman of the U.S. Court of Appeals and Supreme Court Justice Antonin Scalia is of the highest order. So, too, is her scholarship in the areas of federal courts, constitutional law and statutory interpretation. I am not a legal scholar, but I have heard no one seriously challenge her impeccable legal credentials.
Your concern, as you expressed it, is that “dogma lives loudly in [Professor Barrett], and that is a concern when you come to big issues that large numbers of people have fought for years in this country.” I am one in whose heart “dogma lives loudly," as it has for centuries in the lives of many Americans, some of whom have given their lives in service to this nation. Indeed, it lived loudly in the hearts of those who founded our nation as one where citizens could practice their faith freely and without apology.
Professor Barrett has made it clear that she would “follow unflinchingly” all legal precedent and, in rare cases in which her conscience would not allow her to do so, she would recuse herself. I can assure you that she is a person of integrity who acts in accord with the principles she articulates.
It is chilling to hear from a United States Senator that this might now disqualify someone from service as a federal judge. I ask you and your colleagues to respect those in whom “dogma lives loudly”—which is a condition we call faith. For the attempt to live such faith while one upholds the law should command respect, not evoke concern.
Respectfully,
Rev. John I. Jenkins, C.S.C.
President"
The Real Dianne Feinstein:
Q: Do you oppose abortion or not?
A: As a personal matter, I oppose it. As an Appellate Judge, I fully recognize that I would be bound by Supreme Court precedent, such as Roe v Wade.
Q: Cut the BS, Professor. You'd find a way to circumvent Roe, wouldn't you? You'd uphold restrictions on late term abortions, or 48-hour waiting periods or some other clever obstacles, wouldn't you?
A: I'd follow Supreme Court precedent.
Q: Oh horse-hockey. You're an old school, Catholic right? You believe in that voodoo? You go to mass every...single...day. Isn't that right?
A: I do attend Mass on a regular basis, Yes.
Q: I just want to know -- are you going to uphold Roe v. Wade or not? If you are, we don't have a problem. If you aren't we have a MAJOR problem. It's a super-precedent, and it cannot be overturned under stare decisis, right?
A: What about Bowers v. Hardwick?
One of my objections to the US way of things is that its obvious to me that Catholicism as the State Church is a good and necessary thing.
This was where European/Western civ. went wrong. Religious liberty and pluralism had some advantages, but over the long term its evident that there have been huge costs.
Two commenters observed that the Supreme Court has six Catholics and three Jews. That was correct until Scalia's death. His replacement is a Protestant.
As organized Christianity has been systemically dismantled in Western Europe, it has become vulnerable to inundation from foreign populations that will only serve to accelerate the degree to which their civilization is tearing itself down.
Christianity is on the verge of being accepted in China. There has been a long history of covert churches, many Catholic, but many of various evangelical Christian faiths.
My Chinese medical student ten years ago was the daughter of a professor at Beijing U and her father had trained as a physicist but was barred from an academic position because he was Christian. He was an auto mechanic.
That is changing.
"its obvious to me that Catholicism as the State Church is a good and necessary thing. "
I disagree. When Louis XIV revoked the Edict of Nantes, the Industrial Revolution went to England with the Huguenots.
I was raised Catholic but believe the Church has been far too mystical and not practical enough.
Mormonism is the modern Calvinism. It works for commercial life.
@buwaya:
One of my objections to the US way of things is that its obvious to me that Catholicism as the State Church is a good and necessary thing.
This was where European/Western civ. went wrong. Religious liberty and pluralism had some advantages, but over the long term its evident that there have been huge costs.
That would have been a very difficult sell to the Founding Fathers, I think. In the 1884 election, James Blaine's candidacy was sunk when Presbyterian Minister Samuel Burchard criticized the mugwumps for aligning themselves with the party of "rum, Romanism, and rebellion." The anti-Catholic slur was used frequently in the late 19th and early 20th centuries, including against Al Smith in his 1928 presidential run against Hoover. Catholics as Republicans seems mostly a marriage of convenience to me. Sort of how radical feminists teamed with evangelicals in the 70's and 80's agitating against pornographic material. Catholics' contribution to Republicanism seem to be pro-life advocacy only.
p.s. If you want Catholic countries descended from European colonies, just look south of the Rio Grande. I don't see a whole lot there I want to emulate.
J. Farmer said...
Speaking of orthodoxy, I remember reading a piece in The American Conservative by Rod Dreher, in which he discussed the small but growing number of intellectual conservatives who were leaving western Christian tradition (Roman Catholics and Protestants) for Eastern Orthodoxy. "
I would not call myself an intellectual but I have considered it myself.
I have a book, "Literary Converts" about the astounding number of British writers and artists who converted to Catholicism in the late 19th and 20th century, a group that included Wilde (and both the Marquis of Queensbury and Bosie), Chesterton, Evelyn Waugh, Muriel Spark and Alec Guinness.
The conversions dropped off after Vatican II in part because one of the great attractions of Catholicism for writers and artists was mystery, aesthetics and ritual. The post V II church replaced the Latin with services in the vernacular (and the prosaic English language version sounds like it was created by committee) statues with felt banners and "smells and bells" with the handshake of peace.
The Orthodox services I have attended are beautiful and retain that sense of mystery.
J. Farmer said...
p.s. If you want Catholic countries descended from European colonies, just look south of the Rio Grande. I don't see a whole lot there I want to emulate."
The Church has never had a good understanding of capitalist economics. I am Catholic but fully understand why capitalism took off in the Protestant North of Europe.
"She wasn’t one of those modernist Catholics popular with liberals and leftists who are devoted to progressive politics."
Like the Pope?
One thing I prefer about Eastern Orthodoxy over Roman Catholicism is that there is no pope. Another is that priests may marry.
@exiledonmainstreet:
I would not call myself an intellectual but I have considered it myself.
Here is Dreher's original piece from 2002, which discusses the topic at length.
I agree with you about Orthodox religion and iconography, as well as its appeal to creative types. Paglia's prose goes on and on about the influence of Roman Catholic art on her development. But I also think the reasons for the conversions are a bit deeper than that. I think appeals to traditionalist-minded people, and as their churches have become more modern, they have felt left abandoned to a degree. This probably explains, to a degree, the so called "zeal of the convert."
I would not call myself an intellectual but I have considered it myself.
I would call you an intellectual, exiled. To me, an intellectual is someone who actually thinks about stuff rather than merely regurgitating what they learned in school or parroting the latest theorists.
Feinstein's problem, I think, is that, like so many leftists (and some rightists -- you know who you are), she doesn't believe that judges rule on the basis of "the law" as they understand it. She thinks that all judges rule on the basis of their preferences, and their ideology. No leftist judge would consider him/herself bound by the kind of commitment that Barrett made, so why should Feinstein think that Barrett is honest?
"The Orthodox services I have attended are beautiful and retain that sense of mystery. "
My favorite Catholic service is Benediction.
I especially love Tantum Ergo, although that version is higher pitched than my favorites.
I am stunned at Pres. Eisengrub of Princeton stepping away from the template. https://www.princeton.edu/news/2017/09/08/president-eisgruber-asks-senate-committee-avoid-religious-test-judicial. I admire his courage.
I am not stunned that the leftmedia rummaged around and found law professors to cover for the scurrilous Democrats. It is ever so.
Ultimately, the bottom line, as pointed out by Eisengrub, is that Barrett's position is consistent with the law and the Constitution. Hence the point isn't really whether Feinstein and the other schmucks are insulting the Sixth Amendment. The point is that they are acting in bad faith and "Borking" Barrett knowing full well that she has never argued that her faith should control her judicial rulings.
The "tell" from Stone and Segal in the op-Ed piece is this: "Had Ms. Barrett said that her faith would in fact deeply influence her judging, would the question have been deemed so wrong? We think not." "Had she said?" Indeed, but she did not.
Michael K
My father sang Tantum Ergo on the way home from church all those years ago.
The problem isn't that Feinstein is asking the question. It is that she is mis-characterizing Barrett's views. The article Feinstein is citing does not say that judges should impose their religious views but that they should recuse themselves rather than violate their consciences. Feinstein's statement that she is "puzzled because [Barrett has] a long history of believing that [her] religious beliefs should prevail", is completely unfair and in fact opposite of what Barrett has been claiming.
I acknowledge that the usual suspects are saying the usual things and the tribal drums are booming over all of this, but Feinstein is in the wrong here.
Thanks for those links, Michael.
I love "Miserere Mei Deus." I find it achingly beautiful.
https://www.youtube.com/watch?v=fcWo1hKHu40
J. Farmer: " I think appeals to traditionalist-minded people, and as their churches have become more modern, they have felt left abandoned to a degree. "
Yes, listening to Renaissance polyphony or Gregorian chant or visiting one of the great cathedrals of Europe makes me feel connected to history, a tiny part of one of the wellsprings of Western Civilization (not the only one, but an important one). I only wish more Europeans felt the same.
Thank you for your kind words, mock. I feel the same about your comments.
J Farmer
The longing for meaning has led many back to the traditional churches and away from the many, or most, that are "adapting" to the moment. Thus the evangelicals are booming and the Eastern Tradition is gaining strength. The Roman church would do well to revert to the Latin rite. High Church Anglicans and certain Episcopal Churches cling to the swinging of the incense and the officiants facing away from the communicants. Rare but still there. The Episcopal Church which I attend is principally an arm of the Democrat Party. I close my ears during certain sermons and go only for the traditional service.
If you are ever in NYC try to attend the 11 am service at St. Thomas Episcopal on 5th. The Boy's Choir will make you a believer.
The point is that they are acting in bad faith.
We all want our side to win, and we all know the other side is acting in bad faith. There is a word for this: politics.
Not that it matters (I guess), but the secular, anti-theocratic 1st amendment was written during a time when the sectarianism about which the framers worried would have been within Protestantism. I'm pretty sure that their home country of England was still pretty heavily restricting the civil rights of Catholics up until 1778 - but this probably wasn't the oppression about which the framers worried all that much. Their break with Rome 2.5 centuries before was crucial to England's political and social development - and hence, our own. Anti-Catholic sentiment was rife in America through the 19th c. waves of Irish immigration and was rooted in the interesting idea that moral independence - and hence, social and political independence - might be hindered when having to submit all of one's moral ideas to a very powerful supreme, earthly authority.
That said, the most retrograde of Catholics today - as with the most retrograde of Evangelicals - about which any decent Americans ought to worry, don't seem all that concerned with papal authority - at least when the pope of the day is a decent, kind and authentically Christian man like Francis Bergoglio. They probably still know and love their dogmas, which is inhibiting of moral reasoning - but less concerned about following the supreme Catholic leader's moral instruction.
Dogma is inherently antagonistic to logical reasoning, and hence even moral (and judicial) reasoning. There's probably a better way that Feinstein could have raised this, or probably not. But just leaving it as an attack on some judicial nominee's unreasoning conservatism is not effective enough. One has to make the case that these nominees are unconcerned with independently reasoning through the facts of each case as if they were individual cases, and cases in which decent social resolutions are desirable, rather than a slide into anarchy and authoritarianism.
Posner is right; the Scalia-tarian dogma that poses judges as robotic statutory interpreters is defective and only appropriate for tyrannical systems of "justice."
@Michael:
If you are ever in NYC try to attend the 11 am service at St. Thomas Episcopal on 5th. The Boy's Choir will make you a believer.
A good friend used to live in Murray Hill and was a docent at MOMA, just down the street from St. Thomas'. I am familiar with it. Beautiful stuff, admittedly. But while it moved me, I was similarly moved by a Buddhist funeral for a friend's father in the northeastern town of Kalasin, Thailand; it had no effect on my belief in Theravada Buddhism (which is equal to my belief in Christianity).
Feinstein was using dogma in the religious sense, but dogma can equally be used of any system of beliefs or principles strongly held by an individual. Progressives and leftists in general are very dogmatic people on social and moral issues - and far more pushy about imposing their system of beliefs on the general public than the religious people, which should mean if anything that they get more scrutiny than the religious judges.
"Dogma whistle."
First!!!
Earnest Prole said...
"'The point is that they are acting in bad faith.'
We all want our side to win, and we all know the other side is acting in bad faith. There is a word for this: politics."
Bullshit! Even in a society dominated by moral relativists it is possible to discern good faith from bad faith.
"That said, the most retrograde of Catholics today - as with the most retrograde of Evangelicals - about which any decent Americans ought to worry, don't seem all that concerned with papal authority - at least when the pope of the day is a decent, kind and authentically Christian man like Francis Bergoglio."
Authentic Christianity is defined by the teachings of Jesus Christ and the New Tesrtament, not the approval of secular progressives, the dogma of climate change or the economics of Juan and Eva Peron.
Authentic Christianity is defined by the teachings of Jesus Christ and the New Tesrtament-
If only the phony Christians-In-Name-Only that you approve of knew what those were. But feel free to tell me what economics you think Jesus promoted. Probably the Wall Street/Trump kind, right? And I'm sure he also felt that flooding the poor out of existence was all in the plan, also.
Well, Toothless Revolutionary, I'm a libertarian atheist, so I'm pretty anti-religion whether it's Christianity or State-cultism; but I have read the New Testament in several different translations, and I have never found one word to support the beliefs of "Christian socialialists" (that has to be the superstition trifecta--collectivist voodoo economics, statism and religion all in one package) or the idea that Jesus was some sort of early version of Bernie Sanders or other contemporary mountebanks.
That's a good point, William Chadwick. He definitely would have agreed with your obvious belief that when the state is greedy and allows the people to starve, it's definitely preferable to private sector stinginess. I can really see how looking down on the meek and the downtrodden follows from his teachings as long as its the democratic state "of, by and for" the people doing the mistreatment. He really wanted to keep all those good Samaritans out of the people's government - no doubt about it.
Ah-ha, Toothless, you're obviously a fan of the Good Samaritan. You remember that story: the guy gets waylaid by some robbers, and is mugged and stripped and left by the side of the road. (And they don't even invoke "the Common Good" or some other shibboleth while doing it!) The Samaritan finds him and, wanting to help, becomes a robber himself and forces other people to pay for the mugged guy's food, clothing and medical care. You can find that version in the Gospel According to Hillary, a translation beloved by stupid State-cultists the world over!
You remind me of Hillary, William Chadwick. Inventing an enemy so insidious that it's the only way to keep yourself going. Hillary talks of a "vast right wing conspiracy" and you talk about the imaginary "cult of state." But I understand that you have no way of justifying your dream of government of, by and for the greedy sociopaths, so you instead respond with a joke so dumb that it would get tomatoes thrown at you at the Apollo - or even a laugh factory in Dubuque Iowa. You glibertarians are just as useless, humorless and feckless as Hillary herself! And you're both also your own worst enemies. Hillary hates men and you hate government. Two things that aren't going away any time soon. LOL.
Is litigating "gender discrimination" cases a religious rite? Perhaps. About those open spaces, the solution is simple: more wise Lathinas.
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