It’s amusing to me that the first person on social media whom I saw ding Feinstein for this was a lefty, with various other lefties groaning in the replies that she’s the worst. I think they’re in earnest, sort of. Feinstein infamously complained to Barrett at her last confirmation hearing a few years ago that “the dogma lives loudly within you,” an ugly objection to seating her on the bench because of her faith. Liberals feared she’d do the same thing, or worse, at Barrett’s SCOTUS confirmation hearing, gift-wrapping a talking point for Republicans three weeks out from an election that the Democratic leadership is anti-Christian. So they’ve been whispering to reporters that Feinstein has “lost a step,” even that she maybe shouldn’t even be allowed to retain her position as ranking member on the Judiciary Committee for fear that she’d blunder again.
But there’s also history here between Feinstein and the left. They’ve complained for ages that she’s too centrist and far too cozy with Washington’s establishment, especially since she represents a deep blue state where a progressive could win easily. She was challenged for her seat two years ago by lefty Kevin de Leon and only managed to win by single digits. The AOC wing of the party wants her out and someone more radical in ASAP, especially as she approaches the age of 90 and her 30th year in the Senate. So the left has been on alert for screw-ups by Feinstein at the hearing as much as the right has. If they can get rid of her by amplifying Republican complaints that she’s bad for the country and therefore for their party, so be it.
Feinstein managed to get through the first two days of questioning Barrett without saying anything dubious about “dogma.” But then…
📽️ Sen. Feinstein hot mic talking about Judge Amy Coney Barrett: “She’s been pro-life for a long time. So I suspect with her, it is deeply personal and comes with her religion.” pic.twitter.com/5dUBhHLQsn
— Tré Goins-Phillips (@tregp) October 15, 2020
Is that an insult to the nominee? “Of course,” one might say. Feinstein’s hinting again that Barrett can’t or won’t rule fairly on the legal merits of Roe, as any other judge might, because she’s too religious. It’s faith, not reason, that’s allegedly led her to the pro-life view. At bottom it’s an accusation of bias aimed at the judge because she’s Catholic. It’s phrased more delicately than suggesting she’s unfit because “the dogma” lives loudly within her, but it’s the same objection.
On the other hand. If we’re being real, Barrett’s reputation for religious devotion is one of the reasons righties are so enthusiastic about her, no? Not in the crass sense that she’ll follow Catholic doctrine rather than the Constitution in her rulings — of course that’s not true — but in the sense that casting the deciding vote to overturn Roe would take great moral courage given the sort of political and personal backlash that would follow. Maybe Anthony Kennedy, Sandra Day O’Connor, and David Souter voted to uphold Roe in 1992 strictly on the merits, because stare decisis was that important to them, but the assurance that their ruling would spare the country from a certain sort of upheaval must have made it easier for them to follow through.
The hype for Barrett is that she won’t bend under pressure. Her faith won’t dictate to her how to decide a challenge to Roe but her faith might help give her the strength to stand by that decision. To cast that vote will require real moral fortitude. Her religious devotion suggests that she has it.
Viewed that way, Feinstein’s comment is both true and false. Barrett’s pro-life view doesn’t “come with her religion,” but her religion may lend her a certain resolve in defending that view that another nominee might lack.
Feinstein’s not the only Democrat thinking about Barrett’s faith today, by the way:
In an interview with the Shawnee Mission Post, Democratic Senate candidate Barbara Bollier said Judge Amy Coney Barrett ought to be asked about her faith before being confirmed to the Supreme Court…
“Most people in America have a faith and are influenced by it. So, of course she is influenced by her faith,” Bollier told the interviewer after he asked whether Democrats should ask Barrett about how her faith might influence her public role. Bollier continued:
The question is: Is she wanting to put her faith in play as a faith for all and will that affect our law? And I think that is a question that needs to be asked of her, how she intersects her faith with the law. That is important, but bottom line is, it’s about does she follow the Constitution and how? That’s the kind of tough question I would ask her. But to act as if she isn’t influenced by her faith– everyone is. So I think it is important to discuss how it does.
“Does she follow the Constitution, and how”? It’s one thing to say that all religious people are influenced by their faith, it’s another to muse that they might have difficulty applying the Constitution because of it. That *does* sound a bit like a religious test, doesn’t it?
I’ll leave you with this from Dick Durbin, a rare example of a Democrat making a good point about the Barrett hearing today. It’s a bipartisan point too, as Rich Lowry made the same argument in a piece published this morning. Why do we have confirmation hearings anymore when the nominee won’t answer legal questions or even basic civic questions like whether a defeated president should peacefully transfer power to the rightful winner? It’d be one thing to go through this song and dance if we still lived in an era where senators from the opposing party were willing to vote for a nominee if he or she performed well at the hearing, but we’ve degenerated to a state of strict (or almost strict) party-line votes. Why keep up the charade?
On Day 4 of the Barrett confirmation hearings, Sen. Dick Durbin (D-IL) says, “What was the purpose of this hearing if we've reached a point now where we really don’t know what she thinks about any issues, any major issues?” pic.twitter.com/l2xlWIOPgB
— The Recount (@therecount) October 15, 2020