Amy Coney Barrett and our Regime of Stratagems

Senator Feinstein’s questions of Barrett in 2017 were not the imposition of a religious test, but rather a sad and miserable symptom of how politicized the court has become.

(Image: Harold Mendoza/Unsplash.com)

Much has been made of the religious faith of Amy Coney Barrett. And there are many people on the Right who are criticizing those folks in the Senate (and rightly so) who questioned her about her Catholic faith. I would like to make three points in that regard.

First, the questions were obnoxious indeed, but not for the reasons many people are saying. They were obnoxious because they were simplistic in content and malicious in intent. The presumption was that if she was a woman of deep faith then she could not rule on cases impartially, especially those cases involving things like Roe and Obergefell. However, those same senators never question more secular nominees about their “worldview” and the extent to which that worldview (and its attendant assortment of values) would render them incapable of being impartial. Therefore, there is an anti-religious animus involved in Barrett’s case insofar as the implication is that people of faith cannot bracket their worldview from their judicial decisions in a manner that a more secular justice can.

This is, of course, understandable in a sense and therefore I am not implying that the Senators involved are bad people. It is understandable because those asking the questions are, most likely, relatively secular folks themselves and it is simply human nature to view those who think like you as ideologically harmless — indeed, to view people who think like you as not really having an “ideology” at all, but who are just, well, “being reasonable.” The Catholic faith does not shape or form the canons of rationality that govern our culture and, quite frankly, when professed robustly, looks foreign to someone who has not had his or her rationality shaped and framed by more idiosyncratically Catholic categories of thinking.

However, that caveat out of the way, the idea that a potential justice of deep religious faith is incapable of judicial impartiality and professionalism is, of course, epistemologically, psychologically, and sociologically naive, as well as empirically false and, therefore, insulting. The only proper line of questioning would focus instead on her judicial record as the only evidence available for her suitability to sit on the highest court. Feinstein’s “The dogma lives loudly in you” could be applied to anyone who holds deep moral convictions on the issues of the day. We all have “dogmas” in that sense, and if one doesn’t hold some values to be non- negotiable then, I would argue, such a person is not suited for judicial office. Feinstein, as I said, should have focused solely on Barrett’s judicial record and empirical evidence and not smeared the name of an excellent judicial mind by insinuating that religious faith is inherently prejudicial in a judicial sense.

Nevertheless, and second, I disagree with those on the Right who say that the line of questioning from Feinstein and others was an unconstitutional imposition of a “religious test” for office. As naïve and as flatulent as the questions were (and they were) there is nothing unconstitutional about questioning a potential justice about the extra-judicial organizations to which her or she belongs. I think, as I said above, that such questions are out of line and deeply flawed. However, I don’t think they were the imposition of an explicit religious test for office.

For better or for worse, Roe v. Wade has become a toxic flashpoint in all of these hearings and when it comes to the Supreme Court — a court that could easily flip to an anti-Roe position with one more conservative justice appointed — some Senators want to know if a potential justice will rule against it based on his or her deeply held moral convictions. A judge who was a high-ranking member of an all-male social club might also face similar scrutiny with regard to his views on civil rights for women. Once again, more likely than not, such questions would be a distraction from his actual judicial record — a continuation of our Kabuki theatre absurdities in these confirmation hearings — but they would not be, for all that, unconstitutional questions to ask.

And I want to make it clear that I think this is all a very unfortunate by-product of Roe v. Wade insofar as that decision has poisoned our politics for decades now. Feinstein’s questions were not the imposition of a religious test, but rather a sad and miserable symptom of how politicized the court has become. I am not a huge fan of Justice Kavanaugh (he seems like a status quo Republican to me) but the treatment he received in his confirmation hearing was a travesty on both a political and a moral level. The intent of the opposition was to utterly destroy the man, to crush him, and to make him limp away mortally wounded. In fact, it was a complete disgrace. Therefore, what Feinstein and others did to Barrett was merely a milder version of the same. But in that case, it was not for a seat on the Supreme Court. If she does turn out to be the nominee, I shudder to think what might happen to her reputation, and, given the vigilante violence of our times, her life.

So in this sense, I think accusing Feinstein and her gaggle of co-conspirators of imposing a religious test is far too tepid. In reality, her offense was a sin against the very fabric of the Republic itself, rooted as it is in a necessary nexus of moral virtues that transcend politics and, indeed, constitute a broader kind of “politics” than mere electoral voting. Take away that fabric of virtues that affirm common decency, mutual respect, and civil discourse, and you are left with absolutely nothing more than “tactics.” In the French movie Amalie the old, reclusive artist says to the titular character with some insight and consternation: “ah yes, you are very fond of stratagems.”

What Feinstein did was to harm the dignity of the Senate by reducing everything to a stratagem.

Finally, and third, in an altogether different sense, I think it is actually a good thing that Barrett’s Catholicism is an issue. Would that all of us lived our Catholic faith with such deep seriousness that the culture that surrounds us takes notice and gives a thumbs up or a thumbs down as we fight in the Coliseum of modernity. Stanley Hauerwas, that irascible theological raconteur, during the debate over whether active gays should be allowed to serve in the armed forces, made the observation that he wished that the same question of “suitability for military service” would be asked of Christians. In other words, Hauerwas is saying, as he has for decades now, that as the Christian faith becomes ever more beige and becomes indistinguishable from bourgeois, suburban, “American values”, it is now even more important for those of us who do take the faith seriously as a counter-cultural witness to make ourselves as visible as the night moon, and as annoying as a hemorrhoid.

Therefore, if Amy Coney Barrett’s lived faith costs her a seat on the Supreme Court, I think that would be, at the very least, a sign that the reports of the death of Catholicism are greatly exaggerated. “There lives the dearest freshness deep down things.” So says Gerard Manley Hopkins in his majestic poem, God’s Grandeur. And indeed there does. In the age of McCarrick we Catholics can be excused perhaps for having a certain creeping acedia and a demoralized defeatism. The Church, in one sense, is filthy and corrupt and fills us with a sense of shame. But the Gospel is true and the Church will live on in her saints who are a constant reminder of that dearest freshness.

Jesus said: “In the world you have tribulation. But be of good cheer, for I have overcome the world.” The victory will someday be ours, even if it comes with a martyr’s crown.

(Editor’s note: This essay originally appeared in slightly different form on the Dorothy Day Catholic Worker Farm blog and is reprinted here with kind permission of the author.)


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About Larry Chapp 6 Articles
Dr. Larry Chapp is a retired professor of theology. He taught for twenty years at DeSales University near Allentown, Pennsylvania. He now owns and manages, with his wife, the Dorothy Day Catholic Worker Farm in Harveys Lake, Pennsylvania.

10 Comments

  1. The politization of the judiciary is actually of long standing, with the most notorious example prior to the 20th century being Scott v. Sandford in 1857, which effectively made slavery legal everywhere in the United States. As William Winslow Crosskey explained in his book “Politics and the Constitution in the History of the United States” (Chicago, Illinois: University of Chicago Press, 1953), in an effort to preserve and extend slavery, the Court essentially undermined the natural law basis of the Constitution by claiming that personality comes from the State, not from God, thereby abolishing all natural rights of life, liberty, and private property.

    Following the Civil War, Congress adopted the 14th Amendment in part to overturn Scott, but the new amendment was nullified by the Court in the Slaughterhouse Cases of 1873 that enshrined “the living constitution” theory as legal orthodoxy instead of original intent. This gave what Dorothy Day sarcastically called “Holy Mother the State” virtually total power in the person of the Supreme Court, bypassing both Congress and the actual human beings in which ultimate sovereignty resides.

    The only real hope for returning “power to the people” is to follow Pope Leo XIII’s prescription in § 46 of Rerum Novarum, and restructure the social order so that “as many as possible of the people prefer to own.”

  2. If she is confirmed tonight, the left’s leaders would be smart to congratulate her and keep their mouths shut. There is nothing they can do to stop it; they can react to it but they cannot stop it.

    The pendulum is swinging back to people having to take responsibility for their personal choices.

  3. One way Amy could live her beliefs out better would be for her to give up her career and take care of her children “full time.” Granted that this would cede the “battleground” to someone who might not have the same internal credentials, I maintain that her children need her more that the Supreme Court does. There is no one better “qualified” for that particular “job.” However, there are plenty of men who would probably be as capable or more so on the Supreme Court.

    • There is a very good article in Politico touting Amy Barrett as the icon of the new feminism that calls for harmony and cooperation between the sexes ( with emphasis on the husband and wife in a covenant parenthood with shared responsibility for the children. That seems to be working well for ACB and her husband who agreed early on that while the children would always come first both of them would share and trade off when necessary to allow them both to pursue their professions and take care of the kids. This new approach revives respect for life and children but heals the wounds of absentee fathers. While not expecting this to evolve into a new norm overnight or one generation for that matter, it does give me great hope for the future that has been dwindling over the past decades.

    • You know Shawn I’d probably agree with you in principle in most cases, but exceptional times may call for exceptional people.
      Deborah was a judge back in Old Testament days and that certainly wasn’t the norm either.
      God makes use of the people He chooses and His ways can be mysterious. In any case I think He will have the final word in all this. Let’s keep Judge Barrett and her family in prayer.

  4. If we don’t believe that Judge Barrett will only follow the constitutionally settled law and not have her personal feelings interfere, I would ask that we examine recent Supreme Courts history of decisions and the ideology inferred. The high court, as is other federal branches of government, are to be apolitical. Agencies like Justice, military, health, etc. But, we all know that rule of our constitution has been blatantly breached. Trump’s appointment of Bill Barr drastically imposed an rightwing mentality. Barr fused himself to Trump and acts, not as the peoples lawyer, but as Trumps personal lawyer. As a result the Justice Department is in disarray.

    They say Judge Barrett is radically rightwing because her decisions on the federal appeals court that were highly conservative. SCOTUS and Justice are heavily partisan. When Justice Kavanaugh said in his Senate hearing, “Roe is settled law” some on the right were aghast. When in 2016, Mitch McConnel blocked Merrick Garland and would not even give him a hearing.

    Trump has launched a law suit to eliminate the Affordable Care Act when he has not offered a replacement causing millions to go without insurance, many with preexisting conditions. Judge Barrett is said to be willing to follow Trump’s wishes. One might ask WHY? Roe will be challenged. Roe should be overturned in favor of the Hyde Act.

    We can only pray that the high court and Justice will become political free and really follow the Constitution and the law.

    With Barrett’s SCOTUS appointment considered the court will have a 6 “conservatives” and 3 “liberals”. In order for the liberals to pass laws it would take 2 conservatives to “swing”. That seems unlikely. That leaves the 3 liberals mute.

    • I’m not sure what your point is. I’m sure liberals were wailing and gnashing their teeth (not!) during the Warren court period when the constitution was turned on its head and began the new strategy of legislating from the bench. Perhaps we may actually get respect for the constitution again with a new “right” leaning court.

    • Morgan,
      Good morning!
      Have you had a chance to look at the rulings made in Judge Barrett’s New Orleans federal court?
      I haven’t yet but she’s presided over several hundred cases, so looking at those decisions might give us a better idea than going by what the media and others say.

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