Faith should not be a factor in court vetting process, expert says

Faith should not be a factor in court vetting process, expert says

President Donald Trump walks with Judge Amy Coney Barrett to a news conference to announce Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (Credit: Alex Brandon/AP.)

A fellow faculty member at the University of Notre Dame with Judge Amy Coney Barrett, U.S. President Donald Trump’s newest pick for the U.S. Supreme Court, has said he doesn't think religious belief should impact a person's eligibility for such positions.

ROME – Professor Rick Garnett, a faculty member at the University of Notre Dame with Judge Amy Coney Barrett, U.S. President Donald Trump’s newest pick for the U.S. Supreme Court, has weighed in on the discussion of just how much faith should be part of the vetting process.

A professor of political science and director of Notre Dame’s program on Church, State and Society, Garnett said that ultimately, “judges decide legal questions, not religious ones.”

“If they are doing their jobs correctly,” he said, “they seek to determine what the laws and rules made by others require; they do not issue decisions that happen to advance their own beliefs or policy preferences.”

All judges “have beliefs, commitments, ideals, and values. This is unsurprising, and there’s nothing worrisome about it,” he said, adding that in his view, Barrett has carried out her role “with humility.”

A former clerk to the late Justice Antonin Scalia, who died in the run-up to the 2016 presidential elections, Barrett, 48, is a longtime faculty member at her alma mater, the University of Notre Dame, and since 2017 has served as a judge on the Chicago-based 7th U.S. Circuit Court of Appeals.

On Saturday, Sept. 26, Trump nominated Barrett – a practicing Catholic with seven children – to fill the Supreme Court vacancy left by the late Justice Ruth Bader Ginsburg, who died Sept. 18 after battling cancer.

Barrett’s faith has fallen into the public spotlight ever since rumors of her nomination began to make the rounds, largely linked to an episode during her hearing before the Senate Judiciary Committee in 2017 when she was being considered for a seat on the appeals court.

During the hearing, Barrett was asked about her religious beliefs and how they would influence her views on the constitutionality of abortion and other issues.

Democratic California Senator Dianne Feinstein made headlines when she told Barrett that, “dogma and law are two different things. And I think 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.”

Ever since Barrett’s nomination was first floated, there has been an explosion of discussion on whether religious beliefs should be considered during the vetting-process for a position such as the Supreme Court.

There has also been debate over the massive ideological divide between Barrett and Ginsburg – who was Jewish, pro-choice, pro-gay marriage, and who became a cultural icon for her efforts in pursuing gender equality and working to eradicate gender discrimination from the law.

In his view, Garnett doesn’t see anything exceptional in Barrett’s nomination in terms of this shift but insisted that “every change in the personnel of the Supreme Court of the United States is significant.”

With no set term limits, openings for Supreme Court positions are “unpredictable,” he said, but noted that Barrett’s nomination comes “at a time when political passions, energy, and polarization are high, given the upcoming election.”

Speaking as a colleague, Garnett praised Barrett’s credentials, saying she is “an accomplished scholar, a beloved teacher, and a respected judge.”

“She is obviously well qualified, and if confirmed would serve with distinction,” he said.

Noting that Barrett would be the sixth Roman Catholic to serve on the Supreme Court should her nomination be accepted, Garnett said he isn’t worried about a disproportionate number of Catholic justices, as Catholics in the United States tend to reflect the wider population, falling all over the political spectrum.

“This current fact about the ‘overrepresentation’ of Catholics on the Supreme Court is interesting, as a matter of history and demographics, but it certainly isn’t cause for concern,” he said, noting that for much of U.S. history, “all groups besides white male protestants were underrepresented on the courts.”

“Reasons for the current make-up have more to do with the break-down of barriers for Catholics to attend elite law schools and with the fact that Republican presidents, who have been seeking judicially conservative nominees, have identified a number of accomplished Catholic lawyers and judges who have seemed to fit the bill,” he said.

Garnett also stressed that being Catholic doesn’t necessarily imply adherence to any specific judicial philosophy. “We know that Catholics in the United States – for better or worse – behave and think, politically, pretty much like everyone else,” he said.

Catholic justices currently serving on the U.S. Supreme Court are: Chief Justice John Roberts, appointed in 2005; Justice Clarence Thomas, appointed in 1991; Justice Samuel Alito, appointed in 2006; Justice Sonia Sotomayor, appointed in 2009; and Brett Kavanaugh, appointed in 2018.

Since Barrett’s nomination, Catholic pro-life groups have been vocal about their hope that her vote on the Supreme Court would tilt the scale in overturning Roe v. Wade – the landmark 1973 Supreme Court decision that legalized abortion.

For Garnett, even if Barrett is confirmed, that doesn’t necessarily mean the controversial ruling will be overturned.

As a matter of fact, “the [Supreme] Court cannot simply reach out and overrule a decision. Instead, the Court only reviews cases that have come up through the lower courts,” he said, noting that in order for the Court to overrule Roe v Wade, “there first needs to be litigation involving a state of local regulation that actually raises the question.”

“Second, we are seeing abortion-rights-supporters adopting a strategy of litigating abortion-regulations on state-law grounds,” rather than federal. This strategy, Garnett said, “is intended to make it more difficult for the Court to have a chance to confront Roe directly.”

In terms of whether Barrett’s nomination will be accepted, Garnett stressed that he’s no expert, but said that based on the current composition of the Senate, he expects Barrett to be confirmed before the election.

“It is worth remembering that, in more normal times – not that long ago, in fact – she would almost certainly have been confirmed overwhelmingly, as her former boss, Justice Antonin Scalia was,” he said, but noted that in today’s current political climate, “it has become common for senators to automatically vote against nominees of presidents of the other party.”

Follow Elise Ann Allen on Twitter: @eliseannallen

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