Democrats are about to make a seismic political error. They are about to attack President Trump’s highly qualified, female, conservative pick for the Supreme Court – for her faith. In the process, they will be attacking America. The outcry will be enormous.
The nominee is Judge Amy Coney Barret, a seasoned jurist, incisive federal judge on the U.S. Court of Appeals, 7th Circuit. Graduating from a Catholic high school, she was Phi Beta Kappa in college, 1st in her law school class at Notre Dame. She clerked for Justice Scalia on the US Supreme Court.
She is a real constitutional lawyer – having litigated, taught, published on constitutional issues for Columbia, Cornell, Virginia, Notre Dame, and Texas law schools. She was “Distinguished Professor of the Year” at Notre Dame – three times.
On the bench, she has been a strict constructionist, following where the law led, not making it up. She defended constitutional rights of males against discrimination by a college; strictly interpreted judicial processes to disfavor unsubstantiated race discrimination; took issue with judicial activism, dissenting from a ruling that stripped Executive authority over immigration; defended Second Amendment rights and supported 4th Amendment rights against illegal search and seizure, disfavoring police overreach.
In short, this nominee is high integrity. She is an originalist, or strict constructionist. These ideas describe how one reads the Constitution. She reads it as if – get this! – words mattered, as if our Founders intended what they said, as if the Constitution’s text describes unchanging rights.
She seems to think – like Scalia, Thomas, Gorsuch, Kavanaugh, and most justices historically – that the Constitution’s text is not flimsy, fungible, willy-nilly phrases to be reshaped by judges. She thinks the job is to apply laws – as written – to facts of a case, not to get creative.
Of course, the elephant in the room – reason Democrats are livid – is that such a reading does not align with Roe v. Wade, a 7-2 ruling that mysteriously “discovered” a “penumbra of privacy” hidden in the Constitution, mandating a constitutional right to abortion.
Justice Blackmun, who wrote that decision – reversed most state laws. He strained to explain where this “right” came from: “Whether it be founded in the 14th Amendment’s concept of personal liberty and restriction upon state action, as we feel it is, or as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, it is broad enough to encompass” abortion.
The decision is ironic and unstable. Look at Blackmun’s reasoning. Because he broke faith with the Founder’s intent behind the Ninth Amendment, which protects states against federal overreach, he lofts the 14th Amendment to invent an abortion right. It is a juke, and he knows it – which is why he abandons reason, saying “we feel it is” there somewhere.
All this is subtext – reason behind the reason – for Democrats attacking President Trump’s pick. Judge Barret is a nightmare for them. She is a thoughtful, sensitive, smart, well-reasoned, well-educated, female, strict constructionist, mother of seven children, two of whom are adopted from Haiti, one with Down Syndrome. And, Heaven forbid, she is a woman of faith.
They have here an American idealist, true to the Founders, who loves her family, country, Constitution, and faith. She knows that life is hard, exceptionalism no accident – on national or personal levels. She demonstrates we get strong by striving, which imposes a need to protect the weak. They can smell the end of Roe v. Wade.
That is why – with nothing else – they attack her faith. Already, Democrat Senator Diane Feinstein, in earlier confirmation hearings, attacked Barret’s faith, insinuating her legal acumen was compromised. Dripping with condescension, Feinstein said: “The dogma lives loudly within you.” Democrats piled on.
Here is the rub – three reasons Democrats will “feel” the ground shake beneath them. Democrats who attack Republicans on faith – or vice versa – are fundamentally outside mainstream America. We are not a nation that tolerates damning neighbors for their faith, to whom they give thanks for blessings. America is defined by that freedom. To negate it is to step on a land mine.
Second, attacking Barret on her faith is constitutionally offensive. Article 6, Clause 3 of the Constitution reads: “No religious test shall ever be required as a qualification to any office or public trust under the United States.” Note: Ever. Could the obligation be any more clear?
Our nation was founded by those persecuted for their faith; Jefferson defended religions not his. In America, attacking an appointee for her faith is fundamentally obnoxious, ignoble, and unacceptable.
Third, irony runs deep. How soon Democrats forget. John F. Kennedy, first Catholic elected president, had to fight bitterly against anti-Catholic prejudice. Now, they skewer a nominee for being Catholic.
Moreover, Democrat Joe Biden calls himself Catholic, 21 percent of America calls itself Catholic, and half of Catholic voters – until now – were Democrat. What happens when Catholics are made to feel more uncomfortable in a party bowing to atheistic socialists?
What happens when Democrat Senators argue those of faith cannot reason, are possessed of “dogma?” To be clear, “dogma” means “truth,” the notion that – beyond politics – there is a genuine right and wrong in life and law. Is that now to be thrown over, in favor of a new anti-faith Democrat party?
Or this irony: Devoutly Jewish, Justice Ginsburg, whose seat is being filled, got suggested to the High Court by Mormon Senator Orrin Hatch, ranking on Judiciary. No Republican questioned her faith. She was confirmed 96-3.
Finally, Democrats attack America when they attack faith. Beyond history, constitutional direction, and ironies, the big blowback will be from Americans of faith. As Democrats defend socialism, ignore church burning, and impose religious tests, they forget America is religious.
We are a people of faith. In 2016, 73 percent of Americans were Christian – including Protestants, Catholics, Eastern Orthodox, and Mormons. To this, Judaism, Buddhism, Hinduism, Islam, and other faiths. We are a nation of believers, a true global beacon.
Here is the point. Beware the buzz saw, tectonic plate shift when you attack someone’s faith. You can tell people you do not like their politics or jurisprudence, height, weight, handshake, or hairstyle, but beware: When you hold hearings and condemn faith, every American sees themselves in that nominee – and they should. Democrats are about to make a seismic political error. The outcry will be enormous.