This makes twice in three months that a prominent Democratic senator has grilled a Republican nominee for being a tad more religious than they’re comfortable with. There’s something in the Constitution about that, if I’m not mistaken.
The Daily Caller has useful background. Feinstein’s comment doesn’t come out of the blue. Amy Coney Barrett, Trump’s nominee to the Seventh Circuit, co-wrote a law review article 20 years ago arguing that in certain circumstances a Catholic judge who conscientiously objects to capital punishment should recuse herself rather than enter an order of execution against a convict. Feinstein and other Democrats like Dick Durbin tried probing her on that at today’s confirmation hearing. When should a judge refuse to do her duty because the law conflicts with her faith? As you’ll see below, Durbin in particular took issue with the phrase “orthodox Catholic,” a term Barrett used in the law review article, and asked her if she considered herself an “orthodox Catholic” insofar as her beliefs might trump her obligations as a judge. Barrett gives the Kennedyesque answer — duty comes first — and Durbin seems placated.
Feinstein’s comment is jarring, though, because of how blunt she is in framing deep religious conviction as problematic. What she’s worried about here, very clearly, is abortion. Many Democrats would quite like the idea of a judge refusing to order an execution because it offends their Christian faith, but a judge who’ll do that might also recuse herself rather than uphold a petitioner’s right to kill her unborn baby. Feinstein’s “concerned” that Barrett’s moral disgust at abortion would lead her to be derelict in following a law of utmost importance to the left. You would think, as a politician with decades of experience, she could find a more politic way to say that than by insisting it’s “of concern” that a devout Catholic is a devout Catholic, but oh well. “Try to imagine the reaction to this comment in the context of any other religion and federal post,” says Lachlan Markay of the Daily Beast. “A Muslim at CIA, say. Or a Jew at the Fed.” The apology would have already been issued.
Barrett will have the last laugh, though. She’s in her mid 40s; if she serves as long on the bench as DiFi has lasted in the Senate, she’ll be handing down opinions until 2057 or so.
— Jason Calvi (@JasonCalvi) September 6, 2017