Desperately Smearing Amy Coney Barrett

If you're looking for an accurate (let alone fair-minded) assessment of judicial records, Slate's not the place for you.

Slate has started a new series, "Trump Bench," in which Mark Joseph Stern profiles the records of prominent Trump judicial nominees. In his latest installment for this series, Stern examines the "appalling record" of Judge Amy Coney Barrett, and it's a mess. To be clear, the mess is not Barrett's record, but Stern's treatment of it. Stern's account is misleading and inaccuarate, and not remotely fair-minded.

I was going to detail some of the many problems with Stern's piece, but Ed Whelan beat me to it. In two posts, here and here, Whelan catalogs the numerous instances in which Stern omits relevant context, mischaracterizes cases, and seeks to unjustly smear Barrett at every turn. Taken as a whole, the critique is fairly devastating.

If Stern responds to Whelan's critique, I'll post a link, but based upon my familiarity with several of the cases under discussion, and Barrett's record more broadly, I doubt there's much of a defense to make.

In the meantime, for those who want a fairer picture of Judge Barrett, I'd suggest going straight to the source, reading her opinions and law review articles, and perhaps watching this lecture that she gave at the Case Western Reserve University School of Law last year.

Comments

[Brett Bellmore]

Battlespace preparation in case she's nominated to RBG's seat. That's all.

[Sarcastr0]

Slate can be dumb and partisan all on its own without some overarching nefarious agenda.

[sam123]

The endless slander of conservative jurists and the hectoring of John Roberts (whenever there is the prospect of some journalist not getting what he/she wants) makes hanlon's razor hard to apply

[Sarcastr0]

Don’t be paranoid just because you are frustrated.

[Kazinski]

Just because you are paranoid doesn't mean they aren't out to get you.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy -- which has been strikingly mute and shamefully charitable toward disgraced former federal appellate judge Alex Kozinski in a manner only a white, male, right-wing blog might be able or inclined to employ -- is a strange venue for a claim of "endless slander of conservative jurists."

[Brett Bellmore]

But why should they, when they've already got that overarching nefarious agenda?

[Sarcastr0]

Slates agenda is dumb liberal contrarianism. Nothing note, nothing less.

[Careless]

Contrary to what, exactly? If you're rejecting the "preparing the field for a SCOTUS nomination", there's no contrarianism to be had

[Sarcastr0]

Contrary to whatever you got. That's Slate's brand - novel hot takes from a liberal point of view that are undirected and generally neglected by anyone looking for a coherent philosophy.

The preparing the field agenda you're imputing requires far too much coordination for the group of intellectual misfits that they've cultivated.

If you can't tell, I'm not a fan.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Thanks for all that. The two part series is illuminating, and it would be interesting to see Stern's re-rebuttal; if Stern never responds, that would be even more illuminating.

[Sebastian Cremmington]

If Slate publishes an article and nobody reads it does it even exist??

[Longtobefree]

Does the nobody include Schrodinger's cat?

[jjrzw72]

So I take it that you've heard of Schrodinger’s cat, but don't actually understand what Schrodinger was talking about?

[GKHoffman]

The cat will have equal ability to read a Slate article no matter whether it's alive or dead.

[David Nieporent]

Without taking a specific position on Barrett — I have not reviewed most of the decisions that are discussed in the linked pieces — I can take a position on the other half of the dispute: there are few ways to be less informed on a legal issue than reading Mark Joseph Stern.

I do not understand for the life of me why he has this job with Slate. His predecessor Dahlia Lithwick was often snarky and sometimes unfair in her legal analysis, but she was witty and intelligent. The only one of those adjectives that describes Stern is "unfair."

[sam123]

Dahlia was also dishonest. I remember a piece (cant find it) where she was faulting Justice Scalia for alleged religious prejudice. She pointed to his decision in Employment Division v. Smith (ruling against Native Americans) and a subsequent decision in favor of a Christian free exercise claim under the RFRA.

She ignored the fact that the RFRA required more scrutiny than the free excersise clause (at least on Scalia's view, whether he was right in Smith is another matter) and another RFRA decision where he ruled in favor of Muslim litigants.

[billatcrea]

I was going to cite this case in support of my argument, but unfortunately I can't find it.

[TwelveInchPianist]

Sounds like this article. Yeah, nevermind that the RFRA was passed to "overturn" his ruling in Smith.

[Careless]

Yeah, she got ripped on Volokh for her incompetence or dishonesty at least a few times

[Dilan Esper]

I agree with your assessment of Stern, David. He only seems to have the most superficial understanding of the cases. Lithwick was far better.

[SykesFive]

It's the general decline of journalism.

First, unfortunately, journalism attracts a lower caliber of jobseeker than it used to. This has to do with decline in prestige, lower compensation, other opportunities, and all the other usual declension tropes.

Second, most readers of a general interest partisan outlet like Slate want to read something that quickly tells them how to feel about an issue and is suitable for linking on social media. Stern's views are pretty clear and palatable to Slate's readers and he doesn't waste time getting to them.

[NOVA Lawyer]

David,

I so agree with this comment about Stern. I could never understand why anyone gave him a platform, particularly one as prominent (though very lightweight) as Slate. You are exactly correct that he lacks any of the virtues as a legal commentator.

[Armchair Lawyer]

I am not surprised...except perhaps that such "reporting" hasn't come out until now.

[Dilan Esper]

What, Whelan is no longer accusing innocent people of attacking Christine Blasey Ford?

[TwelveInchPianist]

You guys didn’t seem to have a problem when Christina Blasey Ford accused innocent people of attacking Christina Blasey Ford.

[Dilan Esper]

Brett Kavanaugh doesn't even know if he attacked Blasey Ford. He was hammered at almost all relevant times back then. She's the only one who actually had a reliable memory of the incident.

[Careless]

Sure he was, Dilan. And she didn't lie her ass off about various things like her freaking front door

[Bob from Ohio]

"reliable memory of the incident"

Except for the location and date.

And the woman she identified denied it.

[Dilan Esper]

The woman she identified did not "deny" it. She didn't corroborate it but also didn't deny it.

She has a reliable memory of the incident. Now, you can argue she didn't meet her burden of proof because she didn't remember details. I get that argument.

But that's not the argument I was responded to. The commenter said her claim was false. And there's NO WAY to say that, because Brett Kavanaugh hammered throughout that period of his life and wouldn't remember if he did jump on her.

[David Nieporent]

You are completely making up that claim about Kavanaugh. That he sometimes drank to excess — like a large number of high school and college students — seems undisputed. That he ever had memory lapses — let alone ones severe enough to forget assault — most certainly is not.

And your claim that her memory is "reliable" assumes its conclusion. Even accepting her own version, and even if she was sober at the time of the incident, she didn't tell anyone about it for decades. Memory degrades.

[Dilan Esper]

"You are completely making up that claim about Kavanaugh. That he sometimes drank to excess — like a large number of high school and college students"

You are a good defense lawyer, David. But you are completely minimizing a guy who was so drunk that his diaries, his yearbook entries, and his communications at the time were obsessed only with alcohol. Whose best friend portrayed him as "Bart O'Kavanaugh", a stumbling bumbling drunk.

The idea that he didn't drink that much, or didn't drink any more than most high schoolers (I would wager that even in the 1980's, a majority of high schoolers had never ONCE been drunk), is completely belied by the record. I mean it's beyond a reasonable doubt.

And once you concede that, yes, it becomes possible he jumped on her and didn't remember it.

[Dilan Esper]

To make this point a little sharper- his DEFENSE of "Devil's Triangle" in his yearbook was it was a drinking game. (And not a sexual scenario.)

So he was obsessed enough with drinking that he put a drinking game into his yearbook memories.

Again, you can go through the memories listed in my high school yearbook, and you probably won't find more than 10 people out of 400 who discussed drinking. Drinking was central to this man's life.

[TwelveInchPianist]

"To make this point a little sharper- his DEFENSE of “Devil’s Triangle” in his yearbook was it was a drinking game."

His friends corroborated the fact that this was a drinking game. And yes, sometimes people talk about drinking games in high school.

Note that the left's attack was that it was a 2-guy 1-girl threesome. I guess we know how Dilan and other lefts spent all of their time in high school.

Yes, high school kids talk about drinking. When you have to twist this fact as something unusual to make your case, you've lost.

[TwelveInchPianist]

"So he was obsessed enough with drinking that he put a drinking game into his yearbook memories."

Apparently Blasey-Ford's yearbook also contains numerous references to drinking, including to the game, "Quarters", so her memory might not be as reliable as you think.

Vox correctly says that her yearbook is irrelevant, but of course the same is true for Kav's yearbook.

[Dilan Esper]

Was that her yearbook from when she was 15 (when she was attacked) or 18? That makes a big difference here if you are going to claim memory losses.

[Absaroka]

"I would wager that even in the 1980’s, a majority of high schoolers had never ONCE been drunk"

"and you probably won’t find more than 10 people out of 400 who discussed drinking."

We went to veeeery different high schools, I guess. I was one of the non-drinking nerds, but I was in the minority. And I have enough friends who went to other high schools in that era who can relate high school drinking stories that I don't think my experience was exceptional.

I just googled 'how many high school students drink' and the top hit was a CDC survey that says in 2017, 30% of HS students drank in the last 30 days.

I dunno how old you are, but remember that the drinking age back then was usually 18, so half of HS seniors could buy beer legally.

[Dilan Esper]

Drinking =/ getting really drunk repeatedly. Which Kavanaugh did.

[TwelveInchPianist]

"The woman she identified did not “deny” it. She didn’t corroborate it but also didn’t deny it."

The woman she identified was her best friend, who said, "I don’t have any confidence in the story." And there's no evidence other than the accusation that Kavanaugh even met the woman.

So all you've got is a rando making an accusation about something that happened 30 years ago to derail a supreme court nomination.

Yeah, it's a safe bet that it's false.

Contrast that with the Lt Governor of Virginia, where it's not only established that the Fairfax had met his accuser, but the accuser was able to give a date and time for the accusation, and it's established that Fairfax was in a hotel room having sex with her at the time of the accusation.

[Dilan Esper]

And there’s no evidence other than the accusation that Kavanaugh even met the woman.

That's not true either. There is significant evidence that they traveled in the same circle of friends and knew the same people. Squi, Judge, etc., show up in both their lives.

[TwelveInchPianist]

And that's not evidence that they met. Most people have friends who don't know each other.

And none of those mutual friends can recall being around both of them at the same time, I'd say that that's evidence that they didn't know each other.

[Dilan Esper]

Now you are just making stuff up. At no time were all of their mutual friends interviewed on the record or called to testify, and said they didn't remember the two ever meeting.

[Dilan Esper]

On the merits, I am not an Amy Coney Barrett fan, because I think she's incredibly disrespectful of precedent. Obviously, she wants to overturn Roe, but still, it's not just Roe she's talking about.

I think respect for precedent is not only historically correct (we have a common law system) but is also a very telling test of judicial humility. I want people on the bench who understand they aren't the smartest legal thinker in history, and who understand that there is a lot of wisdom and experience in the decisions of those that came before them.

Barrett's position is ridiculously egotistical- "no, screw them, I know everything, and any previous decision I disagree with must be wrong".

[swood1000]

What's the difference between "I disagree with it" and "it is wrong"?

[arch1]

For a person who is infallible, there is no difference.

[Sarcastr0]

😀

[TwelveInchPianist]

"For a person who is infallible, there is no difference."

Yup. A good judge only overturns precedents that are truly wrong, not just ones that the judge believes are wrong.

[nystateofmind]

I can disagree with the holding of a case, but nevertheless feel compelled to follow it when there is no basis for substituting my judgement for those that heard the original case. I agree with Dilan that my issue with Judge Barrett is that she is comfortable saying that any case she disagrees with is wrong and need not be followed. It would be one thing if the principles underlying a case were proven to be incorrect (such as the flawed assumption that separate but equal is possible or much of the precedent permitting affirmative action), but the fact that I may reach a different conclusion is not enough.

[Robert Beckman]

But are the assumptions underlying a valid separate but equal doctrine actually wrong? Or was the problem merely that lower courts refused to enforce the second half of that clause, settling on separate without enforcing equal?

I ask because we still have a widespread separate but equal policy, but it’s applied to gender rather than race, and in this context we don’t have the same problems (or for those who think we do, not to the same extent). So the error with Plessy wasn’t so much that separate cannot be equal (or integrated bathrooms are mandatory - which might be the right answer) but that the lower courts refused to enforce it, and the Supreme Court refused to enforce their own ruling (likely in large part because they didn’t actually mean it but were merely paying lip service to the 14th amendment they’d been eviscerating ever since its passage).

We’re seeing the same thing with the 2nd amendment now, with many lower courts flaunting Heller and McDonald, much like many did with Miller over the past century - under Miller the 1986 machine gun manufacturing ban would have been unlawful as machine guns were in common use in the military, and (setting aside the irregularities of the argument itself) Miller explicitly only allowed a ban on guns that weren’t useful for military service, with the government hoodwinking the court into believing that sawed off shotguns weren’t useful by the military when they had been one of the favored guns on WWI trench warfare just a few years earlier.

[nystateofmind]

I am not sure Heller/McDonald are the best examples because even Justice Scalia in dicta in Heller that the Second Amendment is subject to some restrictions just as the First Amendment, which also uses similar absolutist language, is. I believe the underlying assumptions were wrong in part because they assumed a certain level of specificity without expressly stating so. As we have seen in other contexts, such as qualified immunity, how general or specific you describe something matters if you want to reach a desired holding. By saying “a bathroom is a bathroom,” rather than looking at the nature of both bathrooms, Courts were allowing continued segregation. Part of that blame does belong to the Supreme Court, but you had a general unwillingness from Southern justices to change things and it was also the age of Lochner where there was a lot of laissez faire attitudes on the Supreme Court.

[Dilan Esper]

But are the assumptions underlying a valid separate but equal doctrine actually wrong?

Yeah, they were. Compare how separate restrooms for men and women work to how racial segregation worked. The separate restrooms are usually pretty close to identical. Whereas the facilities for black people were pretty often grossly inferior, underfunded, and poorly equipped.

Thurgood Marshall brought a series of cases under Plessy, before Brown, where he demonstrated how all these different separate facilities in the South were unequal. He laid the groundwork for Brown.

[Noscitur a sociis]

On the merits, I am not an Amy Coney Barrett fan, because I think she’s incredibly disrespectful of precedent.

What makes you say that?

[Dilan Esper]

She's published articles espousing a vision of the legal system where stare decisis is significantly weakened.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Arrogance also applies to those who think their decision is so well thought out that it should stand for all ages.

[Dilan Esper]

That's a false equivalence.

Authors of judicial opinions DO NOT opine that. They simply decide cases. It's when the next judge comes around and says "these predecessors can tell me nothing".

[Robert Beckman]

But that too seems like a parody of the judges position.

As I’ve read her views (you may have read otherwise, please point to such if you can recall) it’s not that prior decisions have no value, it’s that they are worth less than the facts of today as prior judges necessarily had less information than any later judge.

A legal result may have been the product of perfect reasoning, but incomplete or faulty facts (see above, in Plessy separate turned out not to be equal regarding race, but we still use separate but equal for sex all the time).

[Dilan Esper]

As I’ve read her views (you may have read otherwise, please point to such if you can recall) it’s not that prior decisions have no value, it’s that they are worth less than the facts of today as prior judges necessarily had less information than any later judge.

1. And that's arrogance. Why would she think she has better information? Or even any different information? SOMETIMES we have better information- I can argue that happened in Brown v. Board of Education. But many times we just have a decision that was based on the same information and arguments, but that the new judge just disagrees with. The "more information" is a cover story.

2. Her argument is also ignorant of the entire common law system. It's supposed to be ITERATIVE, where we develop usable doctrines that the lower courts can then spin out to create additional sub-doctrines, deciding cases and refining the system as we go along. In other words, the common law DOES incorporate new information. And using the wisdom of crowds, it will lead to better results over time than one judge, no matter how smart she thinks she is, will attain.

[anorlunda]

"Barrett’s position is ridiculously egotistical- “no, screw them, I know everything, and any previous decision I disagree with must be wrong”

Whoa. You are describing Richard Posner, more than Barrett.

[devilsadvocateri]

Dilan, Have you actually read what she says about precedent? She is more respectful of statutory and common law precedent but rejects the growth of 'constitutional common law , seeing only en banc circuits and the supreme court as having the lever of overruling a weaker but not nonexistent regime of constitutional stare decisis.

Much ado was made of nothing regarding her purportedly elevating duty to god over fidelity to the law, ignoring that in the 'smoking gun' of this claim she said that a judge who encountered religious or moral constraint should recuse themselves , e.g. sock puppet alert, . So her argument was that a judge should not force themselves to rule contrary to deep moral conviction, but equally that such a conflict should not be resolved by substituting the individual's morals for those of the polity expressed in it's laws.

Likewise, this notion that she doesn't respect precedent is at odds with a more subtle view of the matter as can be readily seen by reading the 'smoking gun' <a href="https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1274&context=law_faculty_scholarship&quot; law review article that it is claimed telegraphs this lack of respect.

Finally, Stern's criticisms have virtually nothing to do with stare decisis and mostly to do with a [false] allegation that she construes facts and circumstances against the powerless, or, god forbid, follows precedent that prevented her from reaching the questions on which Stern alleges she is so insensitive.

[David Nieporent]

Then again, a Supreme Court justice is paid to exercise her judgment, not blindly follow what others have said. If she was just supposed to follow precedent, we could appoint a moderately well-programmed AI to that seat on the court.

[Dilan Esper]

Not at all, because (1) some cases come up that are cases of first impression, and (2) the application of precedent requires reasoned judgment.

[Sarcastr0]

That's excluding the middle. Stare isn't an ironclad rule by any way shape or form.

It's not blindly following precedent. But it does take into account both ideological humility and institutional continuity.

[David Nieporent]

Dilan isn't arguing, "One should be cautious before overturning precedent." He's arguing that rejecting precedent is arrogant presumption.

[Dilan Esper]

I am not arguing that rejecting any particular precedent is arrogant presumption. I am arguing that a philosophy that says that precedent is of little value as a rule of decision in cases, and which severely weakens stare decisis, is arrogant presumption.

[TwelveInchPianist]

"I am arguing that a philosophy that says that precedent is of little value as a rule of decision in cases, and which severely weakens stare decisis, is arrogant presumption."

How does that follow as a matter of logic? Presumably a judge who believes that she should give little weigh to the ruling of past judges also believes that future judges should give little weight to her rulings, no? So where's the arrogance?

[Dilan Esper]

The arrogance is in thinking that one's own mind- which is never as keen as one thinks it is- is more likely to come up with coherent, detailed, readily applied, and correct legal doctrines than the combined wisdom of numerous predecessors.

[Harvey Mosley]

Isn't respecting precedent the same as judicial originalism? Why is originalism good in this context but not in the traditional sense?

[Dilan Esper]

Because unlike originalism, which doesn't prevent conservative judges from doing whatever they want to do, following precedent actually does constrain judges.

[Robert Beckman]

So you’d prefer a world where conservative judges don’t think they’re bound by originalism and instead exclusively rule based on the morals of every case?

You may think it’s an insufficiently strong fence, but I think the only ones who would actually prefer that conservatives not adhere to originalism are those very conservatives.

[Dilan Esper]

Not exclusively. Obviously, there are situations, like Brown, where there is proof of significant unworkability in the rule. So you change it.

But I have always agreed with Judge Bork that judges need to be constrained. And the problem is originalism doesn't do that, because it is so malleable. Strong stare decisis is much less malleable.

[Bob from Ohio]

"disrespectful of precedent"

You only like "precedent" because its mainly New Deal and Warren Court left wing precedent that dominates.

The words of the Constitution and statutes not those of erroneous prior judges are what matter.

[Sarcastr0]

The main solution is to instantiate conservative versions of the judicial dictators you imagine all judges you disagree with to be, eh? Where do you think that ends?

[Dilan Esper]

Not true Bob. There are plenty of conservative precedents. Such as the precedents rejecting equal protection challenges to school funding decisions, precedents allowing prosecutors to use non-Mirandized statements for impeachment, precedents establishing that there is no constitutional "right to die", etc.

And Heller and MacDonald are precedents too!

So no, I don't want to lock in only the results I might like. I think precedent constrains judges, and indeed is basically the only thing that does it effectively.

[Dilan Esper]

"The words of the Constitution and statutes not those of erroneous prior judges are what matter."

The words of the Constitution and statutes do not answer the complex, case-specific issues raised in particular controversies, Bob. If they did, conservatives wouldn't need to espouse originalism.

You need a way of filling the gaps. An iterative system of precedent is the best gap filling mechanism ever invented.

[Dilan Esper]

I might add that we have a very nice example of this on the front page right now. The Oracle v. Google case is one that could never in a million years be well resolved simply by looking at the Copyright statute, or even by determining original meaning (which is totally murky with respect to computer programming languages).

Nope, you absolutely have to read Baker v. Selden and its progeny. And try to reach a result that consistently applies those rules, which have been relied on for decades in terms of the licensing and litigation strategies of actors in the marketplace. It doesn't matter what you think the original understanding of the copyright statutes was- at this point, you need to apply existing doctrines to the new situations so you don't screw over everyone.

Precedent is the only way to run the railroad.

[Longtobefree]

Really? You read Slate? Why?

[Rev. Arthur L. Kirkland]

Who cares? If Judge Amy Coney Barrett becomes God's mouthpiece on the Supreme Court, reasoning Americans are likely to ensure soon enough that she spends the rest of her career authoring strident, bitter, stale dissents. Her position on the Supreme Court likely would expedite the enlargement of the Court by America's better elements.

Stale intolerance and other backwardness are not improved by being cloaked in superstition-based claims. A bigot who claims to be doing God's work through intolerance is just a particularly dopey bigot.

[TwelveInchPianist]

"Who cares?"

I know, right? As any of America's better elements will tell you, facts are racist.

[Rev. Arthur L. Kirkland]

That attempt at humor falls particularly flat in the context of a judicial candidate whose worldview is controlled by an especially stale flavor of superstition.

Why clingers continue to try to be humorous is nearly inexplicable. Unless Jim Gaffigan and Greg Gutfeld are your kings of comedy.

[TwelveInchPianist]

Hey, you're the guy defending a progressive who can't get his facts straight by saying "who cares?"

[Rev. Arthur L. Kirkland]

I'm not defending anyone in this context, you half-educated bigot. I am declaring a lack of concern regarding whether Amy Cone Barrett reaches the Supreme Court because I see little reason to expect she would be part of a clinger majority for very long.

[AmosArch]

Whats this? I thought you supported women in positions of power? You sound like a bitter clingy misogynist to me.

[TwelveInchPianist]

Well, false accusations of rape probably won't work in this case, and they have to do something.

[Sarcastr0]

You're as paranoid as Brett on this?

Slate can suck without an agenda, you know.

[AmosArch]

Speaking of a War on a Woman.

[Sarcastr0]

Speaking of blind tokenism.

The right often tries this - 'you attacked a minority who is conservative. Ergo, you hate said minority?' I think it's because that's what accusations of bigotry feel like to them - attacks based on a particular individual they don't care for.

It's kinda telling that they don't really see the tropes and larger structural arguments generally behind such on the left accusations.
Not that some on the left don't overplay the accusation, but the right does every single time they try it.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Or perhaps you just have no sense of sarcasm or humor, and read politics into everything.

[Sarcastr0]

Oh yeah, Amos is well known for his nonpartisan jokes.

It may be a bitter angry joke, but it is nevertheless telling.

[Dilan Esper]

You aren't wrong, Sarcastro, but don't be blind to the fact that there really are racist and sexist attacks against conservatives. Sarah Palin got them, and Clarence Thomas gets them all the time.

Merely attacking a female or minority conservative isn't racist or sexist, but some such attacks are.

[Sarcastr0]

Absolutely true.

But I do think it's a helluva thing how both commenters here and national politicians on the right can't distinguish those acts from cases like this.

[bernard11]

I did read the first article on the list the OP links to.

It deals with the question of whether orthodox (small "o") Catholic judges should recuse themselves from capital cases. Barrett and John Garvey, her co-author, say that such judges are "morally precluded from enforcing the death penalty." They the discuss a number of roles a judge might play in a capital case, to determine which require recusal and which don't.

I am wondering how her logic would apply to a Supreme Court justice hearing a case which tries to overrule Roe v. Wade. Here too there is a possible conflict between the moral teaching of the church and secular law. Would she feel obligated to recuse?

[Robert Beckman]

I would bet no, but probably not for the reason you suspect.

A judge in any case must render a judgement, and in a criminal case order a sentence. If the laws of man require one sentence, but the laws of god require another, then a religious judge is in a quandary: she can be forsworn to god by ignoring her laws, or forsworn in front if god by ignoring mans laws. Accordingly such a judge must recuse in any case where they would plausibly be required to forswear themselves.

In a case about what the laws of man require, on the other hand, no such conflict exists. A judge can rule that the laws of man prohibit (or don’t prohibit) things regardless of what the laws of god require, without any conflict as at the outcome the only result will be a prohibition on the government to not perform some action.

To be a little glib, in a capital case the judge will have to decide whether to invoke the red queen and say “off with his head!”
While in an abortion ban case the judge will merely have to decide whether to say “the government may enforce this law, or the government may not enforce this law.”

The moral valence of the two is very different, from the perspective of most religious people. Which is not to say that there isn’t some religious person who must be recused because under their moral beliefs these are disentangle-able, but that isn’t the pattern I’ve seen among the religious.

*all observations as an atheist liberal who doesn’t suffer from bigotry

[Jellis58]

Confused why anyone is taking anything written by Mark Joseph Stern seriously.