Amy Coney Barrett and our Regime of Stratagems
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September 23, 2020Much 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 total 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 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.