Barrett repeatedly said that as a judge, she would uphold the law of the land and would not let her religious beliefs inappropriately alter her judicial decisions.
At the beginning of the hearing, Senator Chuck Grassley (R-Iowa), chair of the committee, asked Barrett: “When is it proper for a judge to put their religious views above applying the law?”
“Never,” Barrett answered. “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.”
Feinstein’s “anti-Catholic bigotry” in her questions to Barrett “is especially chilling because it defames and slanders such an accomplished woman in the legal guild,” Pecknold said.
Feinstein “reveals herself to be the sort of ideologue who never considers the substance of her interlocutor’s actual legal decisions, but rather projects false ideologies onto everyone who disagrees with her party on any point,” Pecknold charged.
In 1998, Barrett co-authored an article in the Marquette Law Review with then-Notre Dame law professor John Garvey, now the president of The Catholic University of America. The article focused on Catholic judges in death penalty cases.
Catholic judges, if their consciences oppose the administering of the death penalty, should, in accordance with federal law, recuse themselves from capital cases where a jury recommends a death sentence, Garvey and Barrett wrote. They should also recuse themselves from cases without a jury where they have the option of granting a death sentence, they wrote.
On Wednesday, Barrett was asked repeatedly about this article, published 19 years ago, and whether she still agreed with it today. Barrett answered that she was still a third-year law student during the article’s publication, and “was very much the junior partner” in writing it with her professor.
“Would I, or could I, say that sitting here today, that article in its every particular, reflects how I think about these questions today with, as you say, the benefit of 20 years of experience and also the ability to speak solely in my own voice? No, it would not,” she answered Senator Grassley’s opening question on the article.
She added that she still upholds “the core proposition of that article which is that if there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, that it is never, ever permissible for that judge to follow their personal convictions in the decision of a case rather than what the law requires.”
Senator Grassley asked her later how she would recuse herself as a judge in a case, if necessary.
(Story continues below)
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“Senator, I would fully and faithfully apply the law of recusal, including the federal recusal statute, 28 U.S.C. § 455, the canons of judicial conduct,” she replied, but added that “I can’t think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience.”
Garvey, in a Thursday op-ed in the Washington Examiner, explained the article’s conclusion in cases where judges face a conflict of interest between their own conscience and the law.
“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,” he said, pointing instead to the federal recusal statute.
Sen. Dick Durbin (D-Ill.) then grilled Barrett over her use of the term “orthodox Catholic” in the article, implying that she did not think persons who dissent from Church teaching on marriage to be real Catholics.
“I’m a product of 19 years of Catholic education. And every once in a while, Holy Mother the Church has not agreed with a vote of mine. And has let me know,” he told Barrett. “You use a term in that article – or you both use a term in that article -- I’d never seen before. You refer to ‘orthodox Catholics.’ What’s an orthodox Catholic?”
Barrett pointed to a footnote in the article that admitted it was “an imperfect term,” and that the article was talking about the hypothetical case of “a judge who accepted the Church’s teaching” on the death penalty and had a “conscientious objection” to it.