“You’ve been outspoken about your role and your Catholic faith, and what that plays in your life,” then-Committee Chairman Chuck Grassley, an Iowa Republican, said. “And you’ve thought and written about the role your faith should play in your profession.”
Grassley offered Barrett, then nominated for a US appeals court seat, an early chance to explain her views on a topic that was bound to be a flashpoint.
This time around, during her confirmation hearings to join the Supreme Court, Republicans say the subject of religion should be out of bounds, and committee Democrats have said they are reluctant to raise the touchy subject. That could prevent questions — and explanations from Barrett — on a recurring theme in her academic writings and presentations related to the relevance of faith in the law.
In the same piece, Barrett and co-author John H. Garvey referred to Catholic opposition to euthanasia and abortion as well, noting, “The prohibitions against abortion and euthanasia (properly defined) are absolute; those against war and capital punishment are not. There are two evident differences between the cases. First, abortion and euthanasia take away innocent life. This is not always so with war and punishment.”
In 2017, Sen. Ted Cruz was among the committee Republicans who joined in with sympathetic queries related to Barrett’s religious views. But he is also among those who now suggest it should be off-limits. In a statement soon after Trump nominated Barrett on September 26, the Texas Republican asserted Democrats in 2017 had “interrogated Judge Barrett not for her record or her qualifications, but for her faith. It was a shameful exercise of religious bigotry, the likes of which should have long ago been relegated to the history books.”
Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, drew criticism then and now for her statements at the time.
“Why is it that so many of us on this side have this very uncomfortable feeling that dogma and law are two different things,” Feinstein began. “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.”
Barrett remarked that all people with deeply held moral convictions must hold back such personal convictions and preferences.
“The public should be concerned about whether a nominee can set those aside in favor of following the law,” Barrett said. “But that’s not a challenge just for religious people. That’s a challenge for everyone.”
She warned at the Hillsdale College event about any unconstitutional “religious test” imposed on someone who would hold public office.
If Barrett is confirmed to the Supreme Court, she would be the sixth Catholic on the nine-member bench, a phenomenon that reflects GOP presidents’ disproportionately turning to socially conservative Catholics in recent decades. Barrett, a 48-year-old mother of seven children, is distinguished however by her outspokenness on issues of faith and scholarly writing addressing the topic.
Barrett would succeed a strong proponent of a woman’s right to end a pregnancy and join a conservative court majority that if not ready to overturn Roe v. Wade is poised to allow greater state regulation and curtail reproductive rights.
In 2017, Republican senators gave Barrett an opportunity to clarify whether, as Grassley phrased it, she would put her “religious views above applying the law.”
“Never,” Barrett said. “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.”
“You have a long history of believing that your religious beliefs should prevail,” Feinstein asserted.
Barrett insisted throughout the hearing that her position was the opposite. “Any kind of conviction, religious or otherwise, should never surpass the law,” she said at one point.
Until the death of Ginsburg on September 18, the religious make-up of the high court was five Catholics (Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh), three Jewish justices (Ginsburg, Stephen Breyer and Elena Kagan) and one practicing Episcopalian (Neil Gorsuch, who was raised a Catholic).
Death penalty cases
When William Brennan, a Catholic, was nominated in 1956, senators asked him about his faith during his 1957 confirmation hearing, which Barrett and Garvey noted in their law review article on Catholicism and the death penalty.
They quoted Brennan as saying, “What shall control me is the oath that I took to support the Constitution and laws of the United States,” rather than the obligations of his faith. Brennan, who became a leading liberal and served until 1990, declared, “That oath and that alone … governs.”
For their part, Barrett and Garvey added, “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”
During her confirmation hearing for the Chicago-based US Court of Appeals for the 7th Circuit, Barrett declined to state her position on abortion. She said that as an appeals court judge she would be bound by 1973 and 1992 Supreme Court precedents guaranteeing women a right to end a pregnancy.
When then-Sen. Orrin Hatch, of Utah, asked if people who take their faith seriously can still be impartial judges, Barrett responded, “Senator, I see no conflict between having a sincerely held faith and duties as a judge.”
As Cruz questioned her about the law review piece, he asked her to elaborate regarding when Catholic judges might sit out death penalty disputes.
“I’ve read some of what you’ve written on Catholic judges in capital cases,” Cruz said. “In particular, you argued that Catholic judges are morally precluded from enforcing the death penalty.”
Barrett cautioned that she had not advocated such a broad prohibition and that the essay, published in the Marquette Law Review, had centered on trial judges, not appellate judges.
“It addressed a very narrow situation,” she told Cruz, when a trial judge who was “a conscientious objector to the death penalty” would be in the position of imposing a death sentence. “We concluded,” Barrett said, “recusal would be the judge’s best course.”
“Is it fair to say,” Cruz asked, “that it is not your intention as a blanket matter to recuse yourself in capital cases?”
“Correct, Sen. Cruz,” Barrett responded.
To Cruz and other senators, Barrett emphasized that the piece was researched more than 20 years ago, when she was a law student at Notre Dame, the “junior partner” on the collaboration. (Garvey is now president of Catholic University in Washington, DC.) Barrett said the essay did not fully reflect her thinking after she became a law professor. But she declined to elaborate on any differences.
Under Democratic questioning three years ago, Barrett reinforced the stance that she would set aside all personal views as she ruled.
To Hirono, Barrett acknowledged that if she were a trial judge, she would refuse to sign an order for an execution. Barrett added, however, as she told Cruz, that when she worked with the late Justice Antonin Scalia reviewing appellate matters, she did not take herself out of death penalty cases.
“When I was a law clerk to Justice Scalia,” Barrett said, “I routinely participated in capital cases.”