Grassley on Judicial Nomination: No religious test should ever be part of our evaluation

 

Today, the Senate will vote on the nomination of Notre Dame Law Professor Amy Barrett to serve on the 7^th Circuit Court of Appeals. She is an eminently qualified and exceptionally bright nominee who has received praise and support across the legal profession. She clerked for Judge Silberman on the D.C. Circuit Court of Appeals and for Justice Scalia on the Supreme Court.

 

She has experience in private practice and many years as a law professor teaching classes on Constitutional Law, Federal Courts, and Statutory Interpretation, among others. And she was appointed by Chief Justice John Roberts to sit on the Advisory Committee on Federal Rules of Appellate Procedure where she served for six years.

 

Her nomination has also received wide support. For example, in a letter to the Judiciary Committee, a bipartisan group of law professors encourage the Committee to confirm her nomination, saying that Professor Barrett “enjoys wide respect for her careful work, fair-minded disposition, and personal integrity.” And her colleagues at Notre Dame describe her “as a model of the fair, impartial, and sympathetic judge.”

 

Despite this, all the Democratic members of the Judiciary Committee voted against her nomination in Committee, and I suspect most in the minority will vote against her confirmation today.

 

This is a shame. And it does not speak well of our institution. Let me explain why.

 

When the Judiciary Committee voted on Professor Barrett’s nomination, I listened to the reasons my colleagues gave for voting against her.

 

Some said that she didn’t have enough experience to be a Circuit Court Judge. Well, the American Bar Association rated Professor Barrett as “Well Qualified.” The Democrats have said the ABA’s ratings are important to them when considering a nominee, once even calling it the “gold standard.” Their votes certainly don’t reflect that. I suspect the ratings don’t actually matter to them since they’ve voted against most of the “Well Qualified” nominees this Congress.

 

The minority has even requested that I not hold hearings on nominees when the Committee hasn’t received ABA ratings for a nominee, as if the ABA, an outside group, can or should dictate the Committee’s schedule. But even when we have “well qualified” or “qualified” ratings, the minority still votes against these nominees, so the actual significance of the rating to the minority doesn’t make a lot of sense.

 

Furthermore, lack of appellate experience hasn’t mattered before. When President Clinton nominated Elena Kagan to the D.C. Court of Appeals she had no appellate court experience. But I remember my friend from Vermont saying the Senate should vote on her nomination because she was an “outstanding woman.” Her lack of appellate experience didn’t appear to concern my friends in the minority then, so I don’t understand why the standard is different now.

 

Another reason some of my colleagues gave when voting against her is that they say she’ll disregard judicial precedent.

 

Of course, if that’s true, that would be a serious consideration. But looking at all of Professor Barrett’s writings and listening to the testimony she gave, not once did she say that Circuit or District Court judges could disregard precedent. In fact, during her hearing she told the Committee that she understands “circuit judges to be absolutely bound by the precedent of the Supreme Court” and that “circuit courts are bound to follow the precedent of their own circuit.” That doesn’t sound like a nominee who won’t respect precedent. In fact, she understands exactly the role of precedent and the limitations and restrictions placed on lower court judges.

 

Another Senator argued that she has written provocative things like, “A judge will often entertain an ideological bias that makes him lean one way or the other. In fact, we might safely say that every judge has such an inclination.”

 

I’m not sure why this statement is “provocative.” I think everyone here knows that every person has their own biases and policy preferences, whether they’re a judge or not.

 

In writing this, Professor Barrett shows the awareness to recognize that every person comes to their job with personal biases and views. And this is especially important for a judge to recognize about themselves. In fact, she’s so self-aware that this is a potential problem for judges that she co-wrote an article arguing if a judge cannot set aside a personal preference in a particular matter before her, she shouldn’t hear the case.

 

Now, these comments come from an article about potential issues Catholic judges may face that Professor Barrett wrote in law school. The article was about Catholic judges, but could have been written about the biases of judges of any other religion or of no religion at all.

 

My friends in the minority have looked at a few of her comments from this article and seem to have concluded that she’ll base her judicial decisions off of what her religion teaches. During her hearing, one Senator even implied that Professor Barrett can’t separate her religion from her judicial decision making.

 

But Professor Barrett has said and argued the opposite several times. She believes it’s highly inappropriate for a judge to use their own religious beliefs in legal reasoning. In fact, she concludes the very article the Democrats are concerned with this way, “Judges cannot and should not try to align our legal system with the church’s moral teachings whenever the two diverge.”

 

I think opposition to her nomination ultimately comes down to the fact that her personal views about abortion don’t line up with the minority’s views about abortion.

 

I knew the minority would ask her about her views on abortion so during her nominations hearing, I asked her if she’ll allow her religious views to dictate her legal decisions. She said she wouldn’t. I also asked if she’ll follow Supreme Court precedent involving abortion and she simply and succinctly answered, “Absolutely, I would.”

 

At her hearing, the statement was made, “You are controversial because many of us that have lived our lives as women really recognize the value of finally being able to control our reproductive systems.”

 

This statement alone is stunning to me for two reasons. First, that a nominee is controversial because she might share the views that over half the country does: that abortion is wrong. And second, because this statement amounts to a religious test.

 

In response, Professor Barrett said over and over that she has no power to overrule Roe or any other abortion-related Supreme Court case, nor does she have interest in challenging the precedent.

 

A further statement was made that, “Religion 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 is of concern when you come to big issues that large numbers of people have fought for for years in this country.”

 

So, the Democrats are saying women who may have personal beliefs consistent with their religion aren’t eligible to be federal judges, even when they assure the Committee over and over again that they strongly believe in following binding Supreme Court precedent.

 

If that’s the case—if the minority is enforcing a religious litmus test on our nominees—this is an unfortunate day for the Senate and for the country.

 

Others have spoken on the issue of a “religious test” but I’ll remind my colleagues the Constitution specifically provides that “no religious test shall ever be required as a qualification to any office under the United States.” It’s one of the most important founding principles.

 

I don’t think an evaluation of how religious a nominee is—or isn’t—should ever be part of our evaluation.

 

We received many letters on this topic including one from Princeton University’s President who is a former law clerk to Justice Stevens and a constitutional scholar.

 

He writes that the questions Democrats posed to Professor Barrett about her faith were “not consistent with the principle set forth in the Constitution’s ‘no religious test’ clause” and that the views expressed in her law review article on Catholic judges are “fully consistent with a judge’s obligation to uphold the law and the Constitution.”

 

Finally, this morning my friend from Illinois justified the Democrats questions in Committee to Professor Barrett by noting that I also asked questions about her article in Committee. But there is a difference in simply asking a nominee if her religious views will influence her judicial decision-making and trying to ascertain just how religious a nominee is by asking “Do you consider yourself an Orthodox Catholic?” or saying “the Dogma lives within you.”

 

My questions gave Professor Barrett a chance to explain her law review article—an article I knew Democrats would question her over. The other side’s questions and comments went to figure out just how strongly she holds to her faith—which was the inappropriate line of questioning.

 

I’ll make one more related comment. I mentioned this in the Judiciary Committee, but I think it bears repeating on the Floor because the issue will continue to come up. Professor Barrett, and a few other nominees, have a relationship with or ties to the Alliance Defending Freedom group, which, as several Senators have recently pointed out, has been labeled a “hate group” by the Southern Poverty Law Center.

 

Now, when the nominees are asked about this, they have pointed out that the SPLC’s designation is highly controversial. I’d say it’s completely unfounded. ADF is an advocacy organization that litigates religious liberty cases. They’ve won six cases in front of the Supreme Court the past six years, including cases related to free speech and children’s playgrounds. They’re not outside the mainstream.

 

Any difference in viewpoint folks may have with them boils down to policy differences. But dissent and difference of opinion does not equal hate and it’s wrong to compare an organization like ADF to that of the KKK or Nazi party, and, by extension, imply that the nominees before us sympathize with such actual hate groups.

 

Finally, I’d note that the SPLC designates the American College of Pediatricians and the Jewish Defense League as hate groups. So, some of the SPLC’s designations appear to be discriminatory themselves.

 

Professor Barrett is a very accomplished, impressive nominee. And we know her personal story is compelling. She has seven children, several of whom are adopted from Haiti and one of whom has special needs. She’s an accomplished attorney and well-respected law professor. I’ll be strongly supporting her nomination today and urge all of my colleagues to do the same.

 

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