“Why is it that so many of us on this side have this very uncomfortable feeling that dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different,” Feinstein said.
“And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern.”
Before making that point, Feinstein praised Barrett personally, saying the nominee was “amazing to have seven children and do what you do.”
The senator pivoted quickly, however, to characterizing Barrett as a “controversial” nominee, “because you have a long history of believing that your religious beliefs should prevail” over the law.
“You’re controversial because many of us that have lived our lives as women really recognize the value of finally being able to control our reproductive systems,” she said. “And Roe entered into that, obviously.”
Barrett insisted that as a judge, she would honor binding precedents, and would not let her religious beliefs inappropriately alter her judicial decisions.
In the same hearing, Sen. Dick Durbin (D-Ill.) grilled Barrett over her use of the term “orthodox Catholic” in an article she had co-authored as a law student. Durbin took umbrage with the term, and suggested that Barrett did not think persons who dissent from Church teaching on marriage to be truly Catholic.
“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,” Durbin 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 execution.
“Do you consider yourself an orthodox Catholic?” Durbin asked Barrett, who replied that “I am a faithful Catholic,” adding that “my personal Church affiliation or my religious belief would not bear in the discharge of my duties as a judge.”
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Durbin, who was in 2004 prohibited from receiving Holy Communion because of his stance on abortion, next said that “there are many people who might characterize themselves ‘orthodox Catholics,’ who now question whether Pope Francis is an ‘orthodox Catholic.’ I happen to think he’s a pretty good Catholic.”
“I agree with you,” Barrett replied, to which Durbin responded, “Good. Then that’s good common ground for us to start with.”
He also asked Barrett how she would rule on a case involving a “same-sex marriage,” given the late Supreme Court Justice Antonin Scalia’s dissent from the 2013 Obergefell decision that legalized same-sex marriage.
“From beginning to end, in every case, my obligation as a judge would be to apply the rule of law, and the case that you mentioned would be applying Obergefell, and I would have no problem adhering to it,” she said.
After the hearing, Barrett’s nomination was confirmed, and the former Notre Dame law professor took up her position as a judge.
But Catholic leaders said the questions she faced were disturbing.
