Bigotry and Dogma: What Senator Feinstein Doesn’t Understand
He had had enough.
The 1906 House of Commons campaign had been a brutal one. Trying to win a Liberal seat back from a Conservative Member of Parliament in the South Salford constituency was bound to be a street fight…and it was. It was bad enough that his French birth inspired his political enemies to sow doubt about his lifelong fidelity to England. But now, once again, they were attacking his Faith. The bigoted slogan was catching on quickly, “Don’t vote for a Frenchman and a Catholic.” And Hilaire Belloc would have none of it.
And so, defying anxious advisors and conventional wisdom, Belloc the candidate stood in a Catholic school before a teeming crowd and let them have it.
“Gentlemen, I am a Catholic. As far as possible, I go to Mass every day. This [taking beads out of his pocket] is a rosary. As far as possible, I kneel down and tell these beads every day. If you reject me on account of my religion, I shall thank God that He spared me the indignity of being your representative.”
Unapologetically, emphatically and clearly, Belloc owned his Faith. And in doing so, he shined a bright light on the bigotry of his enemies.
And he won.
How refreshing.
But surely, that was another time – a time long ago of antiquated religious bigotry not to be seen in our enlightened, modern era.
Right?
Wrong.
Just days ago, Senator Dianne Feinstein (D-CA) sat before an eminently qualified law professor from the University of Notre Dame Law School, Amy Coney Barrett. Barrett, nominated for a federal judgeship on the Seventh Circuit Court of Appeals, was answering questions from the Senate Judiciary Committee when it happened. Senator Feinstein leveled her gaze at Professor Barrett and declared,
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.
This was an overt shot at Professor Barrett’s Catholic Faith. At issue was a 1998 Marquette Law Review article titled, Catholic Judges in Capital Cases, in which Professor Barrett clearly states that where a Catholic judge finds a conflict between her fidelity to a faith-informed Conscience and her legal responsibility to uphold the law (specifically in death penalty cases), the judge is obliged to recuse herself from the case. And yet Senator Feinstein’s pronouncement seemed to imply the judge held the opposite view. If that weren’t concerning enough, Senator Dick Durbin (D-IL) asked Professor Comey if she was an “orthodox Catholic” and Senator Al Franken (D-MN) paraded his concern that the professor’s speech before the Alliance Defending Freedom (a religious liberty law firm which, along with the Becket Fund, successfully defended the right to religious Conscience for Hobby Lobby/Conestoga Wood Specialties at the Supreme Court) was a disqualifying event because the ADF is a “hate group”.
*Sigh*
Here is what is hard to reconcile in this line of questioning.
First, the Senators sitting on the dais of the hearing room have all sworn an oath to defend and uphold the Constitution. Their role (an important one) is to fairly advise and consent on Presidential nominations to the federal judiciary. But in raising concern about a nominee’s religion and religious views (even when she has impeccable credentials as a fair legal mind and has explicitly written on the bright line between religious Conscience and the faithful execution of the law), the Senators are violating the Constitution…they are breaking their oath.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. (U.S. Constitution, Article VI)
Imagine the outcry, if Senator Feinstein commented on the “dogma living loudly” in a Muslim nominee. Or if Sen. Durbin asked a Jewish nominee if she were “an Orthodox Jew.” Fortunately, one clear-eyed Senator in the room, Ben Sasse (R-NE), spoke up saying, “I think some of the questioning that you have been subjected to today seems to miss some of these fundamental constitutional protections we all have.”
Second, the very concerns (about Professor Barrett’s fidelity to the law) that these Senators were worrying over should have been allayed by the law review article they are so busy citing…if they would bother to read it. Even a glance at the conclusion provided clarity,
Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.
And her response to Senator Feinstein’s comment about her “dogma living loudly” within her was sharp and succinct.
It is never appropriate for a judge to apply their personal convictions, whether it derives from faith or personal conviction.
Finally, it is striking how a seasoned Senator like Dianne Feinstein, who subscribes to a legal philosophy known as The Living Constitution, is scrupulous about everybody else’s dogma “living loudly within them”, yet is notably oblivious to the ingrained dogma of her own. She is concerned about Catholicism insidiously creeping into Professor Barrett’s judicial decision-making. She is troubled by the Originalist/Textualist judicial philosophy that seeks to shackle the country to an antiquated document as opposed to letting it evolve into its full glory.
And yet the Catholic Church, through Revelation and Reason, has spent two millennia, countless councils, encyclicals and pronouncements honoring Conscience as well as Christ’s wisdom to “render unto Caesar what is Caesar’s and unto God what is God’s”. Originalism/Textualism, as a judicial philosophy, is anchored in fidelity to a founding document and the subsequent laws and amendments that have arisen since. Senator Feinstein’s Living Constitution, however, is an untethered dogma as aggressive as any. It empowers judges to divine new rights, disregard enduring statutes and pronounce new standards based on the squishy notion of “evolving standards of decency.” Any thinking citizen should sense the danger in unchecked individuals disregarding fixed standards for arbitrary reasons. But not Senators Feinstein, Durbin and Franken. They’re too concerned about Catholics and Originalists.
As the uncomfortable, unconstitutional line of questioning (or accusation) unfolded in the Senate Committee Hearing Room, Professor Barrett smiled and was pleasant. She answered questions politely and, at times, firmly when firmness was necessary. She carried herself with poise and confidence like the qualified legal mind (and Catholic) that she is.
But I can’t help but wonder how the brilliant, yet fiery Hilaire Belloc would have responded to such sophomoric bigotry.
Perhaps we would once again hear,
If you reject me on account of my religion, I shall thank God that He spared me the indignity of being your [appeals court judge].
Perhaps.
But one thing I know for sure…
The Senators would have a whole new conception of “a loud-living dogma.”
