In this Washington Post op-ed, Boston College law professor Cathleen Kaveny asserts that “there is no evidence that [Senator Dianne] Feinstein was motivated by anti-Catholic bias” when she complained to Seventh Circuit nominee Amy Coney Barrett that “the dogma lives loudly within you.”
Yeah, “no evidence” other than what Harvard law professor Noah Feldman correctly identified as Feinstein’s use of “a term with a long history as a dog whistle for anti-Catholicism in America.” Does that prove that Feinstein was actually motivated by anti-Catholic bias? No. But it does render ridiculous Kaveny’s whitewashing assertion of “no evidence.”
Kaveny also thinks it somehow exculpatory of Feinstein that Senator Durbin, “who is Catholic, also asked Barrett about the impact of her faith on her jurisprudence.” Kaveny asks: “Is he a self-hating bigot? Or is it just the Jewish senator who is the problem?”
How strange. Durbin (who, by the way, has been barred by his bishop from receiving communion in his home diocese) has received plenty of criticism for asking Barrett, “Do you consider yourself an orthodox Catholic?” But his question can more readily be classified as out of bounds—what business is it of a senator to make such an inquiry?—than as obviously bigoted. So Kaveny’s not-so-subtle insinuation that Feinstein’s critics—some of whom are Jewish—are anti-Semitic is vile and baseless. Or does Kaveny think that Noah Feldman and Yair Rosenberg (author of “Jewish Senators Need to Stop Subjecting Non-Jewish Nominees to Religious Tests”) are “self-hating bigots”?
More broadly, Kaveny finds “puzzling” Barrett’s position that “her faith-based moral views will not affect her judicial decision-making.” Most of Kaveny’s discussion of Catholic teaching “on many controversial matters at the intersection of law, morality and public policy” simply fails to distinguish between the role of legislators and the role of judges. But she does also assert that “many laws call upon judges to make moral judgments.” Her two examples, however, are weak. She invokes the Eighth Amendment’s ban on “cruel and unusual punishments.” But apart from the fact that the meaning of that ban would properly be determined by looking to the nature of punishments that were regarded as cruel and unusual at the time the Eighth Amendment was adopted, even the proponents of the “evolving standards” approach to the Eighth Amendment purport to be looking to objective markers to determine what those standards are. Similarly, Kaveny’s contention that the common-law doctrine of promissory estoppel limits remedies “as justice requires” seems to assume that neutral principles haven’t (and can’t) be developed to channel that discretion.
But whether you agree with Kaveny or me on the proper relationship between a judge’s moral views and that judge’s decisionmaking is largely beside the point of the current controversy. As I’ve made clear (here and here), I agree with Kaveny that it is fair to explore whether a judicial nominee will indulge her own views in deciding cases. But there are proper and improper ways to conduct such an exploration. Whatever her motivations, Feinstein used an obvious misreading (intentional or not) of what Barrett had written on the relationship between a judge’s religious faith and the judge’s legal duty, and she then invoked a bigoted term to insinuate that Barrett, as a faithful Catholic, would not comply with her legal duty as a judge. Feinstein’s conduct was grossly improper, and Kaveny ought to be condemning it, not offering excuses for it.