The attempted Senate mugging of Notre Dame law professor Amy Coney Barrett by Democratic Sens. Dianne Feinstein and Dick Durbin was ugly and may have amounted to an attempt to impose an unconstitutional “religious test” on a judicial nominee seeking Senate confirmation, but said more about the muggers than their intended victim.
Professor Barrett is a highly respected academic and has been nominated to the 7th Circuit Court of appeals. She is also a practicing Catholic and once clerked for the late Antonin Scalia, two little facts that not only trouble her intrepid questioners, but in their minds, raise questions as to whether she is qualified to sit as a judge on any court. Indeed, it is the fact that the woman is a church-going “orthodox catholic” that the two find unacceptable. Mrs. Feinstein seems to equate any religious beliefs troubling in the secular society in which we live today and is particularly wary of, well, Catholics.
Utah’s Sen. Orrin Hatch and others were offended by what went on in the hearing and he, for one nailed it, observing afterward that “Suggesting that a Catholic nominee who takes her faith seriously cannot be an impartial judge smacks of old-fashioned bigotry.”
Mr. Durbin, the second ranking Democrat in the Senate, just plain doesn’t like Catholics who, unlike him, take their religion seriously. Prior to 1989 and his contemplation of seeking statewide office in Illinois, Mr. Durbin had himself been an “orthodox” Catholic. As a congressman representing a heavily Catholic district, he was a staunch pro-life Democrat when such folks were a welcome part of the old Democratic Party rather than irredeemably deplorable. He even supported a constitutional amendment that would have nullified Roe v. Wade before he saw the light and sensed the direction in which his party was moving.
One has to hand it to Mr. Durbin. When he switches positions with an eye to career advancement he doesn’t hold back. By 2014, had won Planned Parenthood’s “Lifetime Achievement Award” and was denied the right to take communion in his church, and by this year he happily endorsed his party’s national chairman’s declaration that the 28 percent of Democrats who tell pollsters they oppose abortion don’t belong in the Democratic Party. Mr. Durbin sees himself today as the secular warrior against those of his faith who haven’t dismissed their religious views as so much mumbo-jumbo.
The two ganged up on Ms. Barrett, charging that her “dogmatic” beliefs would make it difficult if not impossible for her to act fairly as a judge because those beliefs would trump precedent, clear laws and the constitution and went so far as to suggest that she had said in an article she had written more than two decades ago that this is what she would do.
It turns out, of course, that she wrote nothing of the sort and believes no such thing. The article in question dealt with whether a Catholic judge opposed to the death penalty on moral and religious grounds could overcome that opposition in certain cases, and in it she concluded that in some cases, such a judge might have to recuse herself to avoid just the sort of thing here interrogators accuse her of being ready to do. In other words, the position she took was the opposite of what they claimed.
What does this tell us about the good senators’ motives? They either consciously distorted what the professor had written, were incapable of understanding the words they read or, as is more likely, never read the article on which they based their attacks on a nominee they would do anything or almost anything to send packing.
In recent years Democratic senators have tended to outsource research on judicial nominees to “progressive” outside groups dedicated to finding ways to defeat nominees who aren’t left-wing enough to satisfy their ideological tests. It turns out that the Alliance for Justice provided the senators a research paper filled with “fake news” about the professor and her background and that her questioners swallowed it whole.
The group has been providing ammunition to Democratic senators seeking to defeat conservative judges since the 1980s, played a major role in the defeat of Reagan Supreme Court nominee Robert Bork, supported President Obama’s controversial packing of the DC Circuit Court and worked hard to derail Supreme Court Justice Neil Gorsuch, who the Alliance’s president denounced as a “disastrous choice” when he was nominated by President Trump.
Getting caught peddling fake “evidence” against a judicial nominee should make senators like Ms. Feinstein and Mr. Durbin more cautious about what they say in the future, but one doubts that will happen.
• David A. Keene is editor at large at The Washington Times.
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