Seriously, liberals: Don’t bring up Amy Coney Barrett’s religion
Whether or not Judge Amy Coney Barrett is named to the Supreme Court seat held by the late Ruth Bader Ginsburg in the coming days, as many observers seem to expect, I want to propose a compromise: Questions and speculation about a nominee’s religious beliefs and affiliations should be off limits, while questions about their legal views and future rulings should be asked and answered.
Barrett is an important test for both liberals and conservatives. Some center-left voices have already raised concerns about the relationship between Barrett’s Catholic faith and her legal philosophy, bringing up her reported membership in a charismatic group called “People of Praise” and her stated view that a career in the legal profession is a means to the end of “building the kingdom of God.” During her confirmation hearing for her appointment to the federal appeals court, Sen. Diane Feinstein (D-Calif.) revealingly and disastrously asserted to Barrett, a mother of seven, “the dogma lives loudly in you.”
Pursuing this line of questioning, with Barrett or any other nominee, is a moral and tactical dead-end for Democrats and liberal interest groups. The sooner they abandon it, the better off we all are. Not only does the Constitution prohibit religious tests for office, as a matter of basic civic equality we should refrain from drawing invidious conclusions about anyone’s religious practice.
As the pastor of a Christian congregation, I would be the first to acknowledge that the relationship between theology and politics is not always as straightforward as Christian leaders would like. And strictly as a matter of politics, stigmatizing the Christianity of white conservatives, even if that Christianity is in some way out of the mainstream, never works as intended.
But senators need something to talk about. I suggest they ask the nominee how she will rule.
If confirmation processes have tended to focus too much on issues like religious views, that is surely in part because of an indefensible taboo on asking direct questions about jurisprudence. Supreme Court confirmation hearings have turned into a bizarre spectacle in which the highest possible stakes are discussed in the vaguest, most abstract terms. A senator wanting to ask a question with any specificity is almost certain to hear that the nominee can’t possibly comment on a question on which he or she may be called to render judgment.
This convention is an embarrassment and it needs to end. If the Republican blockade of the Garland nomination in 2016 and the rush to confirm a nominee immediately after Justice Ginsburg’s death have served any valuable purpose, it has been to reveal the Court as just one more institution shaped by and furthering the exercise of raw power.
Republicans want certain kinds of rulings, Democrats want different ones, and everyone is forced to pretend that what’s at stake is a generic “judicial philosophy,” or, worse yet, “qualifications.”
The Supreme Court is a vastly powerful institution exercising an unqualified veto over every legislative and executive act and shaping public policy for decades. John Roberts’ personal sense that times and racial mores have changed resulted in the loss of voting rights protections for millions of Americans. The Roberts Court barely upheld the Affordable Care Act while introducing an option for states to skip the Medicaid expansion, leaving millions without insurance they would otherwise have.
In recent years, the Court has allowed a sweeping ban on visas from majority-Muslim countries, abolished limits on political spending, and made locally-crafted school desegregation plans much harder to implement. The next justice will very likely be ruling on whether the Americans will still benefit from the ACA’s extension of Medicaid, mandated maternity coverage, and protections for preexisting conditions, not to mention enduring questions of voting rights, gerrymandering, abortion, and the authority of federal agencies to regulate pollution and workplace safety.
The few hours the nominee spends in front of senators will be the first and last moment of democratic accountability before, most likely, decades of making law for Americans. We deserve to hear as precisely as possible how the nominee plans to use that power.
And by frankly emphasizing the political over the personal, we could hope to overcome the aura of excessive reverence and even fandom that has at times attached to justices.
Ginsburg was a major figure in American law, but her transformation into a pop-culture icon (albeit an unlikely one) obscured her enduring moderation and the limits of her much-touted progressivism. Her style will no doubt be missed, as is that of her longtime friend and sparring partner Antonin Scalia, whose wit and verve make for a sad contrast with the egregiously dull functionaries of the court’s present right wing.
Much was made of their friendship over the years, and their abiding regard for each other despite many points of disagreement. “Some things are more important than votes,” Scalia is reported to have said of his friend. Their deep friendship is a charming, even moving detail.
But they aren’t our friends, any more than their less colorful colleagues are. And for us, there are only the votes.
Benjamin Dueholm is a Lutheran pastor and author of “Sacred Signposts: Words, Water, and Other Acts of Resistance.”