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If Amy Coney Barrett is nominated as justice, will Democrats again target her faith?

Tribune News Service logo Tribune News Service 7/4/2018 By Stuart Leavenworth, McClatchy Washington Bureau
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WASHINGTON - Evangelicals laud her. Abortion rights advocates fear her. If President Donald Trump nominates Judge Amy Coney Barrett to the U.S. Supreme Court, the nation will be plunged into another divisive confirmation hearing, with Democrats sure to interrogate her on abortion and how she would approach long-standing court precedents.

But will they focus on her Catholic religious beliefs?

Barrett, a former law professor at Notre Dame University, was one of four judges Trump interviewed Monday and she has written about a Catholic judge's duties to respect both the law and the church. After Trump nominated her to the 7th Circuit Court of Appeals last year, Barrett faced grilling from Democrats on whether her Catholic faith would guide her decisions, with California Sen. Dianne Feinstein telling Barrett that "the dogma lives loudly within you."

This time, evangelicals, Catholics and other supporters of Barrett are watching closely to see how Democrats approach her possible nomination, which could be a rallying cry for Trump's base.

"I would hope that her religious beliefs do not become an issue again," said Steven H. Aden, chief legal officer for Americans United for Life, a leading anti-abortion organization.

In last year's confirmation hearing, "Sen. Feinstein took a risk and she lost credibility," he added. "That may play well in California but it doesn't play well in the rest of the country."

Barrett, a law clerk to the late Justice Antonin Scalia, was one of four judges Trump is reported to have met with on Monday, and she appears to be a favorite of Trump's evangelical supporters, in part because she is open about her faith. A mother of seven, she is a member of the Federalist Society, an influential conservative group that has counseled Trump on judicial nominees. At 46, she's one of the youngest judges on Trump's shortlist for the Supreme Court, giving the president an opportunity to influence the court for many decades to come.

a woman smiling for the camera: Amy Coney Barrett © University of Notre Dame/Los Angeles Times/TNS Amy Coney Barrett

If Barrett were nominated and confirmed to the Supreme Court, she'd be far from the only Catholic justice. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor are all Catholic. Trump is also considering Brett Kavanaugh, a D.C. District appeals court judge who is Catholic, to succeed the Catholic Justice Anthony Kennedy.

Unlike Kavanaugh, Barrett has written deeply about how Catholic jurists have obligations to both the church and the law. In 1998, she co-wrote an article, "Catholic Judges in Capital Cases," that argued that Catholic judges "are morally precluded from enforcing the death penalty," and should consider recusing themselves from such cases, if they are faithful to the church's teachings.

During Barrett's confirmation hearing for the 7th Circuit, Feinstein seized on that article and Barrett's past speeches. Feinstein questioned if Barrett, as a federal judge, would apply the Catholic Church's "dogma" to a range of issues, including abortion. "That's of concern when you come to big issues that large numbers of people have fought for for years in this country," Feinstein said.

During that hearing, Sen. Richard Durbin, D-Ill., also sought to probe if faith guided Barrett's legal deliberations.

"What's an 'orthodox Catholic'?" asked Durbin, who is Catholic. "And do you consider yourself an 'orthodox Catholic'?"

Religious conservatives seized on the question to allege that Senate Democrats were hostile to religious court nominees. A conservative group, the Judicial Crisis Network, started running digital ads against the Democrat senators, titled "Catholics Need Not Apply." The president of Notre Dame University sent Feinstein a letter saying her questioning was "chilling." Even some Democrats criticized the questioning.

Barrett won confirmation to the 7th U.S. Circuit judgeship, picking up votes from a few moderate Senate Democrats. Soon after her confirmation vote, The New York Times revealed that Barrett belonged to small, ecumenical Christian group called People of Praise.

According to the Times, members of the group swear a lifelong oath of loyalty, called a covenant, to one another. Each of them is accountable to a personal adviser, called a "head" for men and a "handmaid" for women. The group teaches that husbands have authority over both their wives and family.

Some legal scholars say that, regardless of a judge's religious affiliations, senators have a duty to probe how a Supreme Court nominee approaches the law.

"I generally think a nominee's religion is irrelevant, but what must be remembered in this instance is that Barrett co-authored a law review article on the relevance of her Catholic views to her jurisprudence," said Erwin Chermerinsky, dean of the law school at the University of California, Berkeley. "By doing so, she made this an appropriate topic for questions."

Barrett's supporters, however, say it is unfair to claim that her views on Catholic judges in capital punishment cases would transfer to her ruling against abortion, which the church opposes. In testimony to the Senate last year, Barrett herself stated the church's teachings would not influence her ruling in any particular case.

"It's never appropriate for a judge to impose that judge's personal convictions, whether they arise from faith or anywhere else, on the law," she said.

Over the years, Barrett has made statements that have given comfort to both opponents and supporters of abortion rights. In a 2013 "professors for lunch series" at Notre Dame, she stated it was "very unlikely" the court was going to overturn Roe v. Wade, the 1973 Supreme Court decision that struck down laws criminalizing abortion. "The fundamental element, that the woman has a right to choose abortion, will probably stand," she said.

But in a nod to conservative theorists, Barrett also signaled she would be open to exploring how much power the states should have, as opposed to the federal government, in setting reproductive rights policy.

"It brings up an issue of judicial review: Does the court have the capacity to decide that women have the right to obtain an abortion, or should it be a matter for state legislatures?" Barrett said. "Would it be better to have this battle in the state legislatures and Congress rather than the Supreme Court?"

Aden, whose Americans for Life group is supportive of several of Trump's potential nominees, said many anti-abortion advocates support Barrett in part because of her stated willingness to challenge Supreme Court precedents if they don't comport with her view of the Constitution.

She is also willing to be open and frank about her faith, he added. "It is that personal conviction that makes her such an attractive candidate to so many," he said.

Visit the McClatchy Washington Bureau at www.mcclatchydc.com

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