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Notre Dame president troubled by questioning of Barrett

September 11, 2017

The president of the University of Notre Dame is defending Amy Coney Barrett’s nomination to the 7th Circuit Court of Appeals following a congressional hearing where senators on both sides of the aisle questioned whether she would follow legal precedent or her own beliefs.

Barrett, a professor at Notre Dame Law School, testified Sept. 6 before the U.S. Senate Committee on the Judiciary. Senators queried Barrett about her academic writings, in particular an article from 1998 which examined whether a Catholic judge could preside over a death penalty case.

Notre Dame’s president, the Rev. John Jenkins, wrote a letter Saturday to the Judiciary Committee’s ranking member Dianne Feinstein, D-California. Jenkins said he had “deep concern” about Feinstein’s line of questioning.

The senator, like others on the committee, pointed to Barrett’s writings and speeches which focused on religion and law. Feinstein and others noted, although the professor said she would be bound by precedent, they were unconvinced since sometimes precedent is unclear and other nominees have said the same thing only to rule differently when they are on the bench.

“Dogma and law are two different things,” Feinstein told Barrett. “I think whatever a religion is, it has its own dogma. The law is totally different. I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. That’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

In his letter, Jenkins described Barrett as a person of integrity who has impeccable legal credentials.

“Your concern, as you expressed it, is that ‘dogma lives loudly in [Professor Barrett], and that is a concern when you come to big issues that large numbers of people have fought for years in this country,’” Jenkins wrote to Feinstein. “I am one in whose heart ‘dogma lives loudly,’ as it has for centuries in the lives of many Americans, some of whom have given their lives in service to this nation. Indeed, it lived loudly in the hearts of those who founded our nation as one where citizens would practice their faith freely and without apology.”

The article that many senators reference was “Catholic Judges in Capital Cases” which Barrett co-authored as a third-year law student at Notre Dame with professor John Garvey. It was published in the Marquette Law Review in 1998.

Sen. Ted Cruz, R-Texas, characterized the central argument of the article as Catholic judges are morally precluded from enforcing the death penalty. He then asked Barrett to explain her view because, as he said, it is relevant to the job for which she has been nominated.

Barrett responded that the article was narrower in scope than the senator’s characterization and she reiterated she was a law student helping a professor with the article. The scholarly work, she said, “addressed a very narrow situation, a situation in which a trial judge who was a conscientious objector to the death penalty was required by the law to impose an order of execution. We concluded in that article that recusal would be the judge’s best course…and we insisted repeatedly in that article that in no circumstance should that judge, should that conscientious objector simply try to twist the law to match that judge’s own belief about the death penalty.”

Princeton University President Christopher Eisgruber also wrote a letter to the Judiciary Committee chairman Sen. Charles Grassley, R-Iowa, and Feinstein, expressing concern about the questioning of Barrett and urging the committee to stop questioning judicial nominees about their religious beliefs.

He said he read the 1998 article and found the views it argued are consistent with a judge’s obligation to uphold the law and the Constitution.

“As a university president committed to free speech, academic freedom, and religious pluralism, I must add that, in my view, Professor Barrett’s qualifications became stronger by virtue of her willingness to write candidly and intelligently about difficult and sensitive ethical questions: our universities, our judiciary, and our country will be poorer if the Senate prefers nominees who remain silent on such topics.”

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