John Yoo: If senators attack Amy Coney Barrett's faith, here's the reply she must give

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'I anticipate bigotry' at Amy Coney Barrett's confirmation hearing tomorrow: Rev. Eugene Rivers III

Rev. Eugene Rivers III previews Amy Coney Barrett's confirmation hearing on 'Fox & Friends Weekend.'

Washington, D.C., truly joins the rest of America today. This morning, the Senate will open its first zoom-enabled confirmation hearings for a Supreme Court justice.   

Democrats complain that the spread of the coronavirus makes it impossible for the Senate to consider Amy Coney Barrett’s nomination on the ambitious timetable demanded by Republicans. But it is time that senators experience first-hand not only some of the frustrations of working during the pandemic but also learn to adapt in doing their daily business, just as the American people have this year.   

If they were to exercise the good judgment and wisdom that once characterized their predecessors, senators should quickly confirm Barrett because of her intelligence, qualifications and character. She graduated first in her class at Notre Dame Law School, clerked for Justice Antonin Scalia of the Supreme Court, returned to the Notre Dame faculty, and has served as a federal appellate judge for the last three years. 

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What else can senators expect of Barrett – was she supposed to cure cancer and bring peace to the Middle East too?   

To her credit, Barrett is not a stealth candidate. She has published research on some of the most important issues that face judges. She has asked how much weight to give past decisions that prove incorrect (she believes in some deference to stare decisis), how to interpret ambiguous constitutional provisions (she would begin by examining the understanding of the Framers), and how to resolve conflicts between a judge’s personal morality and the demands of the law (she would enforce the law first).  

Barrett has a deeper scholarly record and a more thought out approach to the law than did Justice Scalia, her role model, when he joined the Supreme Court in 1985. 

But, sadly, rather than applaud Barrett’s accomplishments, senators are likely to attack her because of her devotion to Catholicism. They will imply that Barrett will seek to impose her Catholic religious beliefs instead of faithfully interpreting the Constitution, and that she will therefore overturn Roe v. Wade, the Supreme Court case that first recognized a woman’s right to abortion, or Obergefell v. Hodges, which found a right to gay marriage.   

We already saw a preview of this line of attack three years ago, when Sen. Dianne Feinstein, D-Calif., questioned Barrett’s fitness to serve on the federal appeals court. “The dogma lives loudly within you, and that is a concern” – by which she apparently meant to say that Barrett would allow her Catholic beliefs to interfere with her performance of her judicial duties. Proving that such bias does not live solely among California’s politicians, Sen. Dick Durbin, D-Ill., asked Barrett: “Do you consider yourself an orthodox Catholic?” 

Americans had put aside the idea that Catholics would take their political marching orders from the Vatican. And history has proven them right. 

Imagine if Republican senators had asked Ruth Bader Ginsburg, during her confirmation hearings in 1993, whether her Jewish faith would interfere with her ability to decide cases involving abortion neutrally. Or if conservatives had asked Elena Kagan during her hearings in 2010 whether she followed orthodox or reform Judaism. Americans would have properly felt outrage, just as they should here with any effort to claim a nominee’s religious beliefs have any bearing on their fitness for office. 

If Democratic senators pursue this line of attack, however, Barrett might respond thus: 

“I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all.” 

Today’s Democratic senators might not recognize those words, but those are the ones used by John F. Kennedy, on Sept. 12, 1960, before the Greater Houston Ministerial Association, which had put to rest the claim that a Catholic could not serve as president.   

“I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens also to be a Catholic,” Kennedy memorably said. “I do not speak for my church on public matters, and the church does not speak for me.”   

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Barrett could do no better than to simply borrow Kennedy’s words and declare: “I am not the Catholic nominee for the Supreme Court. I am this administration’s nominee for the Supreme Court, who happens to be a Catholic.” 

Kennedy once held a revered place among Democrats. His 1960 Houston speech was thought to have settled the question whether Americans could trust Catholics with high office. It will be a sad day if members of the Senate were to resurrect such bias. Indeed, if they truly think that Catholics cannot separate their faith from their duty, they should apply their own test to the Democratic candidate for president, Joe Biden.   

Do Democrats believe that Joe Biden would follow Catholic teachings and oppose abortion and gay marriage? What do they make of his willingness to embrace both, when his personal moral beliefs demand otherwise? 

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Americans had put aside the idea that Catholics would take their political marching orders from the Vatican. And history has proven them right. Catholics on the Supreme Court, for example, have voted on both sides of the abortion and gay marriage cases as well as a host of other controversial issues.   

Democratic senators can worry that Barrett would vote to overturn Roe or Obergefell, but they should at least do her the honor of challenging her on the merits of her legal analysis, rather than presume that her religion dictates her conclusions. John F. Kennedy, and the American people, would expect no less. 

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