By CHRISTOPHER MANION
Amy Coney Barrett, professor of law at Notre Dame Law School, has been nominated by President Trump for the U.S. Court of Appeals for the Seventh Circuit. Her confirmation hearing on September 6 was anything but routine.
Today the curtain is pulled back and the gloves are off. It’s all about abortion.
Dianne Feinstein, the senior Democrat on the Senate Committee on the Judiciary, wasted no time in unloading with calculated venom:
“Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things. And I think whatever a religion is, it has its own dogma. The law is totally different. 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 when you come to big issues that large numbers of people have fought for years in this country.”
Mrs. Feinstein isn’t Catholic, but she graduated from the Convent of the Sacred Heart High School in San Francisco in 1951. We can assume that she knew exactly what she was doing when she attacked Mrs. Barrett, because her “big issues” boil down to one: abortion. But Mrs. Feinstein was coy: She couldn’t address that issue directly.
Instead, according to her office, the senator was troubled by Mrs. Barrett’s 2006 speech in which she told graduating law students that “if you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer.”
Undoubtedly Feinstein had heard that same admonition at Sacred Heart High School. In those days, the dogma lived loudly in her teachers, all members of the Society founded by St. Madeleine Sophie Barat 200 years ago.
But Feinstein’s Catholic colleague, Sen. Dick Durbin (D., Ill.), had heard it too. He grew up down the street from Phyllis Schlafly and went to Assumption High School and Georgetown University. At the hearing, he bragged about his “19 years of Catholic education,” but, in his harangue, he pressed Mrs. Barrett to tell him if she was an “orthodox Catholic,” a term he said he’d never heard before.
Mrs. Barrett replied, “If you’re asking me if I’m a faithful Catholic, I am, but I stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.” (Since Durbin, like Feinstein, rates a perfect 100 percent from the National Abortion Rights Action League, he must realize by now that he is not an “orthodox Catholic.”)
The hearing was barely over when Feinstein was met with a tsunami of serious and erudite criticism from across the board, including The New York Times and The Los Angeles Times. The critics were unanimous: She’d crossed the line. Ironically, Feinstein’s gaffe also quickly became an Internet sensation.
Her comments “went viral,” as the saying goes, with college students quickly snapping up T-Shirts, coffee cups, pillows, and bumper stickers bearing the slogan, “The Dogma Lives Loudly Within Me.”
Natural Law Versus Positivism
Mrs. Barrett teaches at the law school where my father taught for 30 years, many of them as dean. While there he founded the Natural Law Institute, devoted to teaching the principles that govern us all regardless of religious faith. That Natural Law also lives loudly in Mrs. Barrett, and it firmly and thoroughly resonates in her Catholic faith because they are perfectly harmonious.
Mrs. Feinstein knows that, which is why she is a legal positivist. She rejects both the Natural Law and the Catholic faith. After all, Hans Kelsen, the founder of legal positivism, once observed that “there is no Natural Law doctrine of any importance which has not an essentially religious character.”
According to the late Notre Dame Law Professor Charles Rice, Kelsen “observed that Auschwitz and the Soviet Gulags were valid law. He could not criticize them as unjust because justice, he said, is ‘an irrational ideal’.”
“Kelsen had formulated his theory before the outbreak of World War II, but he survived the war,” Rice continues. “Did its horrors perhaps change his mind? Not at all. In fact, after the war he could not condemn the murders of tens of millions because, he insisted, according the laws of the countries where they occurred, they were all legal.”
The Natural Law did play a major role in 1991, when Judiciary Committee Chairman Joe Biden questioned Judge Clarence Thomas, a fellow Catholic who had been nominated to the Supreme Court. Biden grilled the judge on his belief in the Natural Law.
“You come before this committee with a philosophy different from that which we have seen in any Supreme Court nominee in the [last] nineteen years,” Biden said. “You are an adherent to the view that the Natural Law should inform the Constitution.”
Judge Thomas would not go there. “My interest in the whole area was as a political philosophy,” he told Biden.
A generation later, Sen. Feinstein was quite aware of that exchange. And she wasn’t going to go there either. Mrs. Barrett possesses a very gifted intellect. Had Mrs. Feinstein asked about the Natural Law, she might have gotten an academic stiff-arm. But Feinstein knew that Mrs. Barrett wasn’t going to distance herself from her faith.
And she was right. And she expected applause from the elite galleries, but instead, her artful ploy blew up in her face.
Bishops Bring Up The Rear
While criticisms of Feinstein came quickly from the laity, Catholic religious leaders were slow on the draw. Two days after the hearing, The Wanderer was still waiting for any bishop to respond to requests for comment. Finally, on Friday afternoon, September 8, the USCCB released a statement by Archbishop William Lori, chairman of the Bishops’ Ad Hoc Committee on Religious Liberty. Archbishop Lori deplored the offensive questions as “deeply disappointing,” adding that they “hark back to a time in our country when anti-Catholic bigotry did distort our laws and civil order.”
Curiously, Archbishop Lori’s response didn’t mention by name Senators Feinstein and Durbin. It didn’t name anybody. Upon reading it, one priest called it “good but too fawning, too little and definitely too late. The only reason these anti-Catholic bigots dare to do this is because they have long ago grown used to facing absolutely no real danger from the Church hierarchy, many of whom still form a silent wing of their anti-Catholic, pro-abortion party.”
On Saturday, September 9, Notre Dame President John Jenkins, CSC, issued a letter finding the tenor of the hearings “chilling.” On the following Tuesday, he appeared on the weekly radio show of Timothy Cardinal Dolan of New York, praising Mrs. Barrett’s remarkable family (she and her husband have seven children, two of them adopted), and suggesting that the questions evoked a bias against Catholics. He didn’t mention any names.
Cardinal Dolan was more blunt: “This is nasty, this is bigoted, and this is, I would maintain, unconstitutional,” he said. “Why are we fair game? Can you picture Sen. Feinstein asking that question of a faithful Jew, or even to a Muslim these days? She would have been blasted in a leading editorial in The New York Times.”
Fr. Jenkins’ careful phrases were outshone by Cardinal Dolan’s vigor — perhaps because, in 2016, Fr. Jenkins had conferred upon the same Joe Biden the Laetare Medal, Notre Dame’s highest honor. (Jenkins awarded the medal to John Boehner at the same time.) According to the university’s website, the medal is awarded annually at Notre Dame to a Catholic “whose genius has ennobled the arts and sciences, illustrated the ideals of the Church, and enriched the heritage of humanity.”
Hold the applause. Please.
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