The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At First Things, I have an essay on the Barrett confirmation, arguing that Senate should vote to confirm. The objections to her appointment, including objections to her religious commitments and the effect they may have on her jurisprudence, don't hold up. Here's an excerpt:
Another objection is that Judge Barrett will be an activist. Here the argument seems to be that, as a faithful Catholic and member of an ecumenical charismatic group, she will inevitably decide cases on the basis of her religious convictions rather than the law—"the dogma lives loudly within you" and so on. But no evidence of this sort of thing exists in her record as an appeals judge, though that record is, admittedly, brief. In her one essay that raises the subject, Judge Barrett suggests that in cases of conflict she would recuse herself rather than impose her Catholic convictions in place of the law, a position that arguably should concern Catholics more than non-Catholics. And, as my colleague Marc DeGirolami has explained, her writings about stare decisis—the idea that judges should stick to decided cases and not overrule them, even if judges think those cases are wrong—are well within the American legal tradition.
Moreover, as Judge Barrett pointed out in a speech at Hillsdale College last year, keeping one's ideology out of judging is not a problem limited to Catholics, or believers generally. When "you think about the debate about whether someone's religion has any bearing on their fitness for office," she told the students, "it seems to me that the premise of the question is that people of faith would have a uniquely difficult time separating out their moral commitments from their obligation to apply the law." But that isn't true. "People who have no faith, people who are not religious" also "have deeply held moral convictions," she said. "And it's just as important for those people to be sure . . . to set aside . . . personal moral convictions . . . and follow the law."
The extent to which judges can and should keep personal moral convictions out of the law is of course a matter of debate. Some constitutional doctrines invite judges to import their convictions into the law, or at least make it difficult for judges to avoid doing so. One example is the "compelling interest test" in free-exercise law, which asks judges to evaluate whether the state has a compelling interest that justifies a burden on religious freedom. But there is no reason to think Judge Barrett would have a harder time setting aside her personal convictions than a secular justice would have setting aside his or hers. Besides, progressives have been arguing for decades that the bench should reflect diverse life experiences, which help judges apply the law in empathetic ways. It's a little late in the day to argue such a thing is unthinkable.
Interested readers can find the whole essay here.