The Barrett Hearings

 Like most Americans, I have been watching the race to confirm Judge Amy Coney Barrett as an associate justice of the Supreme Court with a strange brew of mixed emotions:

• awe at how fast the Senate can move when properly motived (which is apparently not the case when it comes to acting decisively and meaningfully on behalf of America’s COVID-era unemployed),
• amazement at the impressive, almost astounding, hypocrisy the Barrett nomination has elicited from both sides of the aisle as the Republicans effortlessly and unselfconsciously put forward the precise argument the Democrats put forward at the end of the Obama years in the wake of Justice Scalia’s death and the Democrats just as fervently insist on the correctitude of the position embraced at that time by the Republicans, a line of thinking that they could not possibly then have opposed more vociferously, and
• anxiety regarding the prospect of there being on the Supreme Court a justice so openly and unabashedly committed to her conservative Christian faith. It’s that last thought that I’d like to write about this week.

The point that Judge Barrett is a deeply involved, fully committed member of her faith community has been made repeatedly in these last weeks. Like most Americans, I suppose, I was unfamiliar with the People of Praise community until the Barrett nomination brought it to the attention of the public. Nor is that at all odd that I hadn’t heard of it before—the community has, all together, about 1700 members, about a tenth of the number of students who attend Nassau Community College! But, even with such small numbers, it is an interesting community to consider from the outside: an organization that self-defines as a “charismatic Christian community” and membership in which is open to all baptized individuals regardless of their denominational affiliation. And that definition seems to mirror how things actually have worked out for the People of Praise: their website notes that among their members are professed and affiliated Roman Catholics, Episcopalians, Lutherans, Methodists, Presbyterians, and Pentecostals, as well as a selection of other kinds of denominational and nondenominational Christians. (To read more on their own website, click here.) The group has its meetings on Sunday afternoons, in fact, precisely so as to allow members to attend church services in the congregations of which they are actually members. The website is very clear that People of Praise is a community of like-minded Christians working together to attain specific goals, not a church in the conventional sense of the word.

There’s no question that this is a very conservative operation. Until recently, the highest position a woman could hold in the community was that of “handmaid.” (The name has lately been changed to “woman leader.”) Each member is assigned a spiritual advisor called that person’s head. Men have male heads and single women usually have women as their heads, but the heads of married women are invariably their husbands. You get the idea.

No one is arguing, nor (I hope) would anyone, that Judge Barrett doesn’t have the right to affiliate with whatever spiritual community or faith group that she wishes. Nor, as I perceive it, is the problem some are having with the idea of her sitting on the Supreme Court tied specifically to the fact that she is a religious woman whose sense of purpose in life is strongly tied to her religious affiliation. It’s more bizarre than that, actually: the problem at least some of the people opposing her nomination seem to be having with Judge Barrett isn’t that she is affiliated with the religious group of her choice but that she clearly take the tenets of her faith seriously and has allowed them to shape her worldview. According to this line of thinking, it’s okay for Samuel Alito or Sonia Sotomayor to be Catholics because they are perceived—rightly or wrongly—as not being especially fervent believers. (Whether that is actually true or not, I have no idea.) Nor is this a specifically Christian issue: RBG’s Jewishness was celebrated, or at least tolerated, in at least some quarters precisely because she wasn’t actually a religious person who lived her life in strict accordance with the dictates of Jewish law, just a proud Jewish woman who saw no need to dissemble regarding her Jewishness. And the same is surely true, albeit in different ways, of Elana Kagan and Stephen Breyer, both of whom are openly identified as Jewish individuals but neither of whom is perceived—again, rightly or wrongly—as being especially observant. According to this line of reasoning, then, you can be publicly identified with a specific religious tradition and serve on the Supreme Court as long as you don’t take the tenets of that faith all that seriously. But Judge Barrett clearly does take her religion seriously. And that is where she is running into all sorts of trouble.

Traditionally, this race has been run in the other direction. The Constitution says unambiguously that “no religious test shall ever be required as a qualification to any office of public trust,” thereby making it unconstitutional for anyone to be barred from any public office as a result of having failed a “religious test,” which is to say, because of not holding the dogmatic beliefs connected with any specific religion. In other words, not being a religious Christian (which is certainly what the Founders had in mind when they wrote about “religion” with no other qualification) may never be considered a just reason for not permitting someone to run for public office or, if elected, to serve. But here we have the inverse of that idea: someone who is being considered for public office whom many would bar because she does hold specific religious beliefs. When Senator Diane Feinstein turned to face Judge Barrett in 2017 at the latter’s confirmation hearing for her seat on the 7^th Circuit Court of Appeals and observed that “dogma lives loudly within you,” she did not mean it as a compliment. Nor did anyone miss the point.

I was very impressed by an essay I read this last week by Meir Soloveitchik, the rabbi of Congregation Shearith Israel on Central Park West in Manhattan. (Click here to read it too.) In it, the author—whose writing I’ve long admired—argues that religious affiliation has been deemed not to bar any citizen from holding public office, including judgeships, since the founding of the republic. In this regard, he cites the 1790 letter George Washington wrote to Moses Seixas, the leader of the Jewish congregation in Newport, Rhode Island, in which he wrote that in the American republic citizens of all faiths would be granted the “immunities of citizenship,” including, obviously, the right to serve as public officials. And he—Soloveitchik, not Washington—concludes that it should be considered both morally and legally wrong to disqualify a nominee to the Court a priori because of the perception that that person is possessed of even fervent religious faith.

Rabbi Soloveitchik’s analysis of Washington’s letter rings true to me. But not invalidating someone merely because of her or his religious beliefs does not invalidate the actual question of an individual’s worthiness for the Supreme Court. Indeed, the whole point of having these hearings in the Senate in the first place is precisely to determine Judge Barrett’s suitability for the job. In my opinion, however, the question of whether she should be confirmed should be a answered primarily with reference to the degree to which she is prepared to commit herself unambiguously and wholly to upholding the Constitution and is prepared openly and no less unequivocally to say that she will never allow her religious beliefs to lead her into decisions that, for all she personally may feel them justified, run counter to her own interpretation of the Constitution. In other words, her confirmation hearings should be about the likelihood that she will adjudicate the cases brought before her in accordance with the Constitution, and that she will do so even if doing so runs counter to her own Christian values. To disqualify her for consideration because she cannot commit to upholding the law even when it runs counter to her personal beliefs would be wholly legitimate in my mind. To disqualify her because she is passionate about her religious beliefs or because of the specific nature of those beliefs, would not only be wrong, but would be a denial of the basic freedom of religion guaranteed by the First Amendment.