Steve September 28, 2020
the-amy-coney-barrett-discourse-is-a-trap

Poll after poll shows that a clear majority of Americans want the Supreme Court seat once held by Justice Ruth Bader Ginsburg to be filled after the election. But that didn’t stop Tweety McTreason from nominating Amy Coney Barrett one week after Ginsburg’s death, or dissuade Senate Republicans from planning a lightning-fast confirmation process to get her on the court. Once there, her approach to constitutional law will likely run counter to the majority of Americans’ views on issues like abortion rights and health care.

With the November election already underway, many conservatives aren’t eager to discuss aspects of Barrett’s nomination that place them out of sync with voters’ wishes. So instead they’ve preemptively cast her as a martyr of sorts for the cause of religious freedom, while tarring her critics as latter-day Know Nothings who despise the Catholic faith. Their depictions made Barrett, who faces perhaps the most certain road to a Supreme Court seat in two decades, sound like a modern Thomas More.

“65 million American Catholics are going to be very interested to learn that Joe Biden’s Democrats think they can’t be trusted to serve as judges or in public office if they’re ‘too Catholic,’” Missouri Senator Josh Hawley wrote on Twitter. “Democrat bigotry on full display with Amy Coney Barrett.” Hugh Hewitt, a conservative columnist, repeatedly castigated Democrats on similar grounds. “Every Catholic, indeed every person of any faith, has to realize the left despises them,” he warned first on Twitter, then later in a Washington Post column, where he wrote that Barrett’s faith “should not be part of the discussion of her qualifications.”

This is a trap. Conservatives know they can’t defend Barrett’s nomination on process grounds after Mitch McConnell’s Merrick Garland blockade in 2016. Nor can they easily defend her nomination on political grounds, since most Americans oppose replacing Ginsburg before the election and prefer Biden over Trump when it comes to choosing the next justice. So they’ve invented an anti-Catholic bias on the left, seeking to bait Democrats into saying ridiculous things about Barrett’s personal life and background. The right’s hope, perhaps, is that the shared sense of grievance and victimhood that propels Trumpism can be harnessed in this case as well.

This anti-Catholicism claim can be traced to remarks that California Senator Dianne Feinstein made in 2017, after Trump nominated Barrett for a seat on the Seventh Circuit Court of Appeals. Some Democratic senators questioned Barrett about a law-review article she had co-written as a law student with one of her professors in 1998. They argued that “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty,” and described the circumstances in which they should recuse themselves. At the time, the Vatican opposed capital punishment in virtually all circumstances; Pope Francis clarified in 2018 that the church’s opposition to executions is categorical.

Feinstein suggested during Barrett’s confirmation hearing that the article, as well as other works, indicated that Barrett would place her religious views over her judicial obligations. “Dogma and law are two different things,” Feinstein told Barrett. “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.” Barrett, who has since distanced herself from the 1998 article, insisted that she would not decide cases according to her religious beliefs.

Feinstein’s insinuation drew allegations of bigotry from conservatives and some liberals. Some of her critics noted that she appeared to violate Article VI of the Constitution, which forbids imposing religious tests as a qualification for holding public office. “The dogma lives loudly within you” became a right-wing meme of sorts and catapulted Barrett into conservative legal stardom. The exchange did not hinder Barrett’s confirmation to the Seventh Circuit. If anything, it likely helped influence her eventual nomination to the Supreme Court.

Some conservatives have tried to transmute Feinstein’s bad questioning into a broader attack on Democrats and the left. But if Democrats are anti-Catholic, they’re not very good at it. House Speaker Nancy Pelosi, who is currently the highest-ranking Democrat in government, is Catholic. So are almost 90 members of her caucus. The most recent Democratic president successfully nominated Justice Sonia Sotomayor, one of the five Catholics on the court. Indeed, Democrats are so bad at anti-Catholicism that they even chose former Vice President Joe Biden, who is well-known for his Catholic faith, as their standard-bearer to challenge Trump this November.

Democratic lawmakers haven’t obliged conservatives by launching a screed of anti-Catholic attacks on Barrett. Most of their criticism so far revolves around how she’d vote on an upcoming case that could overturn the Affordable Care Act, as well as the hasty and hypocritical process that could put her on the Supreme Court. In perhaps the clearest sign that they won’t repeat Feinstein’s mistakes from Barrett’s last confirmation hearing, some Democratic senators are quietly jockeying to oust Feinstein as the party’s leading member on the Senate Judiciary Committee.

As a result, the right has turned to lesser sources for grievance-mining. Last week, an inaccurate report from Newsweek claimed that a faith group to which she belonged helped inspire Margaret Atwood’s The Handmaid’s Tale; the article in the “far-left” publication, as Breitbart characterized it, was later corrected after a barrage of outrage in right-wing outlets. “You were warned this week that the anti-Catholic zealotry would increase in pitch and fervor the closer Barrett gets to the Supreme Court,” wrote the Washington Examiner’s Becket Adams. “Expect things to become much worse as the week goes on.”

The diversity of Barrett’s family—she and her husband have seven children, including two adopted from Haiti—has also inspired conservative fantasies of liberal smears. After Barrett’s nomination, a Tea Party activist on Twitter posted a photo of two black children with a woman who wasn’t Barrett and claimed it was “going to be interesting to watch the Democrats try to smear Amy Coney Barrett as racist,” a weird preemptive defense against an allegation that hasn’t been leveled. The resulting Twitter discourse surrounding interracial adoption—notably a tweet thread by Ibram X. Kendi, the celebrated professor and author of How to Be an Anti-Racist—fueled many columns and posts on the right. (The Tea Party activist later reposted her tweet with an accurate photo of Barrett’s family.)

There is an interesting discussion to be had about the intersection between Catholicism and the conservative legal movement, especially where judicial nominees are concerned. Leonard Leo, the influential Federalist Society activist, is also a prominent leader in Catholic circles. He played a key role in the nominations of Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Three of those justices are Catholic: Gorsuch was raised Catholic but later began attending an Episcopal church with his family, and he and Kavanaugh even attended the same Catholic prep school in a Maryland suburb of Washington, D.C.

The optics of a largely Catholic bench handing down rulings on major social issues to an increasingly secular America where Protestants are still a plurality is not lost on some conservative observers. “I and many other Catholics worry that a Supreme Court with a strong, long-term presence of self-identifying Catholics (there are currently five) could create the mistaken impression that the court’s decisions are driven more by theological concerns than legal ones,” Hewitt wrote in his column. But the Senate Judiciary Committee isn’t the proper place for such discussions. The more time that Democratic lawmakers spend discussing her impact on Roe v. Wade and the Affordable Care Act, and the less time they spend on her personal life and religious beliefs, the better off they—and the country—will be.

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