I never thought I'd see the day when a coalition of left-wing groups attacked a Republican judicial nominee for opposing the death penalty.
Since Furman v. Georgia in 1972 the American political Left has resolutely campaigned against capital punishment. Justice Brennan used to dissent every time the Supreme Court turned down an appeal from a death row inmate. Speaking at Georgetown University in 1985, he justified his practice by saying, "On this issue, I hope to embody a community striving for human dignity for all[.]" Justice Marshall always joined Justice Brennan in dissent. His explanation was, "It's so morally correct, I wouldn't think of giving it up."
Amy Barrett, a law professor at Notre Dame, was grilled on Wednesday by Democrats on the Senate Judiciary Committee about an article she and I wrote together in 1998 when I was a law professor and she was my student. In that article we argued that the death penalty was immoral, as the Catholic Church teaches (in common with Quakers, Episcopalians, Presbyterians, Methodists, and the 38 member communions in the National Council of Churches). We went on to say that a Catholic judge who held that view might, in rare cases, have to recuse herself under 28 U.S.C. § 455. That is a federal statute that asks a federal judge to step aside when she has conscientious scruples that prevent her from deciding a case in conformity with the facts and the law.
Catholic judges are not alone in facing such dilemmas. An observant Quaker would have the same problem. And I like to think that any federal judge would have had moral objections to enforcing the fugitive slave laws Congress passed before the Civil War. That's one of the reasons we have a federal recusal statute – to allow relief to judges in such predicaments.
Law professors less scrupulous than Prof. Barrett have suggested that sometimes judges should fudge or bend (just a little bit) laws that every right-thinking person would find immoral. In our article we rejected that course of action. "There is a real moral cost to undermining the legal system, even in small ways," we wrote. Our legal system "is a decent and just institution that judges should take care to preserve."
Perhaps the Alliance for Justice, which has mounted a campaign to discredit Prof. Barrett, didn't get that far in reading the article. Its website says this: "Stunningly, Barrett has asserted that judges should not follow the law or the Constitution when it conflicts with their personal religious beliefs. In fact, Barrett has said that judges should be free to put their personal views ahead of their judicial oath to faithfully follow the law."
Barrett (and I) said no such thing. We said precisely the opposite.
There are judges who take the view the Alliance condemns. Justice Brennan always voted against the death penalty because he wanted "human dignity for all." Justice Marshall did the same because he felt that his position was "so morally correct." Their position as Supreme Court justices allowed them to advance this interpretation of the Eighth Amendment, even when the law was settled. But if they had been sitting on the Seventh Circuit, the court for which Prof. Barrett has been nominated, they should have recused themselves.
The case against Prof. Barrett is so flimsy, so transparently at odds with her opponents' own principles, that you have to wonder whether there isn't some other, unspoken, cause for their objection.
Senators Durbin, Hirono, and Feinstein seemed particularly troubled by Barrett's Catholicism. I don't think they objected to her membership in the Church plain and simple. That would violate the Religious Test clause of the Constitution. Nor do I think they were really worried that she, like Pope Francis, opposes the death penalty.
I suspect what really troubled them was that, as a Catholic, her pro-life views might extend beyond criminal defendants to the unborn. If true, the focus on our law review article is all the more puzzling. After all, our point was that judges should respect the law, even laws they disagree with. And if they can't enforce them, they should recuse themselves.
A proponent of liberal abortion policy should want a judge like that. At least on the court of appeals.
John Garvey is the President of The Catholic University of America.
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