Revisiting reported SCOTUS frontrunner Amy Coney Barrett’s battle with Dianne Feinstein

According to reports from ABC News, Bloomberg and several other news outlets, Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit is seen as “a leading contender” to replace the late Justice Ruth Bader Ginsburg on the United States Supreme Court.

These new reports track with an Axios story from March 2019 that reported President Donald Trump was “saving” Barrett — a former professor at Notre Dame Law School and a runner-up for Justice Anthony Kennedy’s seat that eventually went to Brett Kavanaugh — for Ginsburg’s seat should it become available.

Barrett was confirmed to the Seventh Circuit in October 2017, and experienced a contentious confirmation process after California Sen. Dianne Feinstein was one of may Democrats who questioned whether Barrett’s religious beliefs (Barrett is a Roman Catholic) make her unqualified to adjudicate specific cases, specifically ones related to abortion.

“Dogma and law are two different things,” Feinstein told Barrett during the hearings. “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.”

Feinstein’s line of questioning drew outrage from conservatives, with many noting that religious tests for justices are patently unconstitutional. Article VI, Clause 3 of the United States Constitution reads, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

“The notion that Catholics are so beholden to Rome as to be incapable of rendering independent judgment in public office has a long, sordid history,” conservative commentator Sohrab Ahmari wrote in a New York Times op-ed. “Senator Feinstein later denied exhibiting anti-Catholic bias. But as with other forms of racial or religious animus, one needn’t always use an explicit epithet to arouse ugly emotions.”

Feinstein denied she was displaying a hostility towards religion, with her office writing in a statement, “Professor Barrett has argued that a judge’s faith should affect how they approach certain cases. Based on this, Senator Feinstein questioned her about whether she could separate her personal views from the law, particularly regarding women’s reproductive rights.”

This characterization of Barrett’s writings on a judge’s faith is misleading at best.

In the 1998 article in question, Barrett and a co-author explored the challenges a Catholic judge may face in death penalty cases since the religion finds the practice abhorrent. The article concludes that Catholic judges may need to recuse themselves if necessary because “judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge.”

Barrett reiterated this line during her confirmation hearings, stating, “My personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”

Beyond the death penalty article, Feinstein has raised alarms over other public statements of Barrett, including a speech to the 2006 Notre Dame Law School graduating class.

“Our legal career is but a means to an end, and … that end is building the kingdom of God,” Barrett said at the time. “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.”

Others have defended Feinstein for questioning Barrett over her religious views and the 1998 death penalty article.

“The questions should be about how an orthodox Catholic judge’s religious commitments interact with his or her legal ones — which are exactly the questions the article itself raises,” Harvard Law School professor Mark Tushnet wrote in a July 2018 article for Vox. “If it’s not anti-Catholic to have written the article, which it surely is not, it can’t be anti-Catholic to explore the implications of its arguments for other matters.”

Eric Ting is an SFGATE reporter. Email: eric.ting@sfgate.com | Twitter:@_ericting