Patterico's Pontifications

7/2/2018

Would a Justice Amy Barrett Recuse Herself in Abortion Cases?

Filed under: General — Patterico @ 7:59 am

Judge Amy Barrett seems to be the new hotness among conservatives. She is being seriously discussed as a credible candidate to replace Anthony Kennedy despite a mighty thin track record as a judge. Why? Let’s look at a couple of representative pieces. First, Michael Brendan Dougherty at National Review has a piece titled Wanted: Justice Amy Coney Barrett:

The facts of Barrett’s life — that she is a mother of seven children, and that when she speaks about her Catholic faith, she speaks about God as if she really believes in His existence — will provoke nasty and bigoted statements from Democratic senators and liberal media personalities. Again.

You may recall that this has already happened. In 2017, during confirmation hearings for a seat on the Seventh Circuit, Senator Dianne Feinstein surveyed Barrett’s public statements on her personal faith and told her that she worried that “the dogma lives loudly within you.” The bizarre idiom she created was a sign that Feinstein didn’t have an easy way to say what she wanted to say: A Catholic is fine. A believing Catholic is not.

And Michael Walther at The Week has a piece titled Amy Barrett for the Supreme Court:

The hearings on Barrett’s nomination were one of the most appalling spectacles in our recent political history. When Sen. Dianne Feinstein (D-Calif.) condescendingly declared that “the dogma lives loudly within you,” what she was saying, in essence, is that a person who wishes to serve the American people may check “Catholic” as a box on a census form and perhaps root for the Fighting Irish on Saturday afternoons in the fall if she likes, so long as she does not insist upon doing anything so gauche as believing in all that moth-eaten Romish superstition.

. . . .

If any more proof were necessary of the steeliness of Barrett’s character, it is worth pointing out that she has managed to have a successful career as a scholar and teacher while raising seven children.

What is notable about these pieces is their lack of any reference to any of Barrett’s judicial decisions — which is unsurprising, because she has been an appellate judge for a very short time (less than a year). It seems that we are operating under the principle: “anything that upsets the libs must be good.” Dougherty confirms this by italicizing the word “only” in this sentence: “Now, it would be churlish to choose Barrett only because her nomination will cause some Democrats to bleep, bloop disconcertingly before entering into auto-destruct mode.” Dougherty’s next reason for the nomination is equally devoid of reference to judicial philosophy: “It would be good to nominate her, however, because the fight to confirm her will contain edifying political lessons.” The lesson is that we don’t have religious tests for public office.

That is all well and good — but the issue becomes murky when someone openly declares that their religion will interfere with the discharge of their duty. Has that happened with Barrett? No, but there is cause for concern that it might — not that she would judge a case in a certain way because of her religion, but that she would refuse to participate.

In one sphere, the death penalty, Barrett has already declared that Catholic judges performing some functions related to enforcing the death penalty might consider recusing themselves due to the inconsistency of the death penalty with their Catholic faith. In a law review co-written with John Garvey, Barrett states this more definitively with respect to trial judges, and is more wobbly when it comes to the actions of appellate judges:

[W]e believe that Catholic judges (if they are faithful to the teachings of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving.

The authors look at ways in which the decisions of appellate judges are distinguishable from trial judges actually ordering a death sentence. But their conclusion that appellate judges may participate in decisions relating to capital punishment is far from absolute:

Appellate review of a death sentence is not, then, a case of formal cooperation. This does not mean that it is all right. Whatever might be the legal significance of an affirmance, it probably looks to most people like an endorsement of the sentence. This can cause scandal, leading others into sin. . . . Considerations like this make it exceedingly difficult to pass moral judgment on the appellate review of sentencing. The morality of the acts which fall under that description will, it seems to us, vary from one set of circumstances to another.

In discussing whether recusal is appropriate, the authors say:

When an observant Catholic judge sits on the guilt phase of a capital case [as a trial judge] his cooperation with the evil of capital punishment is material rather than formal. . . . . From a moral point of view deciding an appeal is an act of material cooperation, not formal, and one where it is difficult to say what outcome is morally preferable. The issue is especially difficult in cases where the judge is asked to review the death sentence itself. Unless he intervenes the defendant will die. And his act of affirming, whatever its legal significance might be, looks a lot like approval of the sentence. Conscientious Catholic judges might have more trouble with cases like these than they would at trial.

Ed Whelan has pointed out that Barrett has testified that she “could not imagine sitting here any class of cases or category of cases on which I would feel obliged to recuse on grounds of conscience.” Ed Whelan says: “Barrett’s article focused heavily on the recusal obligations of trial judges in capital cases and emphasized that the recusal question for appellate judges was much more complicated under Catholic moral teaching on improper cooperation.” This is true, but there is no blanket assurance in the article.

Not every Catholic judge feels this way, of course. Whelan notes: “Justice Scalia, for whom Barrett later clerked, disagreed with her reading of Catholic teaching on the death penalty.” That is why this is not a “religious test,” but a test of whether a person can discharge her duties in every case, or might instead recuse herself from major categories of cases.

The question becomes more even complicated (and speculative) when it comes to abortion cases. Unlike with capital punishment, Barrett has written nothing specific to even suggest that she might recuse herself in such cases — but the principles could be the same as for capital punishment. If she believed that the issues involved questions of good and evil under her religion, and if she were determined (as I think she would be) to avoid judging a case based on her religious convictions, then it’s not impossible to say she could end up deciding that recusal is the best option even in abortion cases.

It would be ironic indeed if conservatives supported Barrett because they thought her Catholic faith would make her a certain vote to overturn Roe v. Wade — only to see her recuse herself from any such case because of that same faith.

[Cross-posted at The Jury Talks Back.]


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