« Call for Papers: "Religious Violence and Extremism" | Main | Dean Search, Washburn University School of Law »

Wednesday, September 20, 2017

The Obvious Irony of Chemerinsky on Barrett and Feinstein

In the circles in which people comment, and then comment on commentary, and so on, and in which some of these writers treat this activity as as an earnest, important, and influential form of politics, as opposed to a conventional practice or habit with no strong justification outside the practice itself, Erwin Chemerinsky's latest op-ed (as of yesterday, anyway) will get some attention. It defends Senator Dianne Feinstein for having questioned Seventh Circuit nominee Amy Barrett about her religious beliefs and/or about an article of which she was effectively the junior co-author some 20 years ago. I wrote about that questioning here.

The problem is not that Chemerinsky is wrong as such, in broad terms. As I said in my post and have written elsewhere, in my view not all questions about a nominee's religion or religious beliefs and how they apply to the performance of an office are wrong or violations of the Religious Test Clause. The problem is that beyond this very general point--one that is shared by some but not all conservatives, and certainly many serious conservative commentators--the op-ed is vague and unhelpful, does not get to the heart of the question, and is possibly disingenuous. The proposition that it can be valid and permissible to question a nominee about his or her religion in a relevant way does not affect the question whether particular questions are fair, legitimate, or helpful. Chemerinsky writes that criticisms of Feinstein have "mischaracterized her questions." Doubtless some have: It's a big and unimpressive Internet. But anyone who has read John Garvey and Barrett's article and Feinstein's questions, as well as the changeable defenses Feinstein later offered for her line of inquiry, should understand perfectly well that the primary problem is that Feinstein's questions mischaracterized the article. Nor do Chemerinsky and some other defenders of Feinstein recognize adequately, if at all, that even if there was some valid basis for asking questions of some sort, it is possible to do so in a way that explores the question productively without discussing religion much at all, let alone making such a hash of it. Feinstein and some of her colleagues did make a hash of it. The "dogma" line will quite rightly be hung around her neck for the remainder of her career. Defending her right to question Barrett on these topics does not demand a defense of the particular questions she asked or the language she used. It certainly does not require one to ignore the mischaracterization of Barrett's article, a mischaracterization which after all served as a primary basis for asking the questions in the first place. 

I think it is pretty clear that the real raison d'être for Chemerinsky's op-ed is its last paragraph, and especially its last sentence: "The attack on Feinstein is misguided because it mischaracterizes her questions and ignores the basis for them. I fear that it is a smoke screen by the right to take attention away from a very conservative nominee that Trump is trying to put on the federal appeals court bench."

I am not here to defend all the critics of Feinstein, or to deny the possibility that some of these critics were motivated--by politics, by money, or what have you--in their criticisms, or that for some of them the underlying concern was to get Barrett confirmed. Given the nature of politics, that is all but certain, although it is also true that many people were genuinely offended by Feinstein's questions and especially her language. The irony, of course, is that, especially in the absence of a definition for a phrase like "very conservative," it seems more likely to me that almost the precise opposite of this statement is closer to the truth. Barrett is dangerous to her opponents not because she is "very conservative," but because she is highly confirmable. More than that, she is potentially confirmable for an eventual Supreme Court seat. And she is confirmable precisely because she is not easily characterized as "very conservative," and certainly not as an extremist, a thoughtless conservative, a careless and irresponsible ideologically oriented lawyer or legal academic, etc.

If senators allowed themselves to openly and publicly reject nominees on the basis that they don't want smart and responsible people who meet conventional criteria for judicial appointment but are nonetheless clearly (or possibly) "conservative," or "liberal," on the bench at all, we would need fewer smoke screens from either side. It would not be necessary to paint confirmable nominees as "extremists" or "very conservative" or "extremely liberal" or anything of the sort. The results might or might not be better, but the process would be more efficient and more honest. And with that honesty would come greater and more direct political accountability for the senators themselves. (In the case of Merrick Garland, for instance, Republican senators could have said, "We have the right to block this excellent nomination and are going to do so, period," without stretching for dubious justifications and historical precedents and muddying and harming public and political discourse. Their political fortunes would stand or fall on the blunt assertion of a right to block Garland, a clearly qualified liberal nominee, and without the defense of questionable justifications for doing so.) 

As it is, current convention demands that we act as if reasonable and conventionally excellent nominees should be confirmed almost as a matter of right. That in turn incentivizes senators, commentators, and--not least--groups that depend on extreme claims of urgency or emergency to fundraise and justify their continued existence to paint many excellent nominees as "extreme," "outside the mainstream," and so on, or to turn molehills into mountainous disqualifying "scandals, which also involves lengthening the duration of the nomination process as they dig through every jot and tittle for a usable "controversy." It's a lousy system, in my view. But the irony of Chemerinsky's last paragraph remains. The problem with the Barrett nomination, and the reason for Feinstein's questions, some of the criticisms for those questions (which were also fairly subject to honest criticism on the merits), and Chemerinsky's own defense of Feinstein is not that Barrett is a "very conservative" nominee and some kind of symptom of Trumpism. On the contrary, it is that Barrett may be a conservative and would count as a fine and confirmable nominee by any president, for this or a "higher" judicial office. If there is a "smoke screen" involved, it is in pretending otherwise. 


Posted by Paul Horwitz on September 20, 2017 at 10:44 AM in Paul Horwitz | Permalink


The idea that a nominee's religion is unquestionable is ridiculous and frankly dangerous. The fact that these people are getting scrutinized for there socially toxic beliefs is a welcome development. The whining about "religious tests" is frankly bullshit, as if these same people don't apply religious tests to everyone and everything in actual real life.

Posted by: Jen | Sep 20, 2017 11:24:40 AM

When I do it, it's fighting for justice. When you do it, it's playing politics.

Posted by: Anon | Sep 20, 2017 12:03:49 PM

If I may just reply briefly to the first comment: I have written here and elsewhere that I don't think questioning a person about their religious beliefs *and their relevance to their performance of the office they are nominated for* is simply verboten or a violation of the RTC. One can of course believe this without thinking that any such question, while permissible, is sound or unobjectionable or well-phrased, etc. I think Feinstein's questions were subject to legitimate criticisms and that, however one might characterize the lowest common denominator, plenty of criticisms that have been raised against them are not "whining." And no, I do not personally believe that scrutinizing nominees for "socially toxic beliefs" is a "welcome development" (I'm also not sure that it's new, and thus a "development"). I don't rule it out, but it would take some doing to convince me that the benefits outweigh the harms--and even then I would expect such questions to be relevant, accurate, careful to avoid overstatement and to apply consistent standards, humble, and useful.

Posted by: Paul Horwitz | Sep 20, 2017 1:24:16 PM

The gays rights movement in this country was finally able to advance when homophobia became socially toxic, regardless of whether it was religiously fueled or not. It used to be that religion was seen as automatically making someone good or at least well meaning. That is no longer the case.
As someone who is a transgender woman and use to consider themselves a gay man, I am utterly dependent on the increasingly social toxicity of conservative religion and the decreasing privileging of religion in the culture. This is not an academic debate for me. This is literally life and death. And the idea that conservative believers can separate their religion and there public role is utterly comical, as history and practice refute it. And when is there religion relevant their public role? All the time. And yes, I think certain religious practices and beliefs make one unfit for public office, or frankly any role that places one in power over others that wish to not conform to one's religion.

Posted by: Jen | Sep 20, 2017 1:54:30 PM

It would be nice if the senators could just ask directly about the freedom to have an abortion and the right to keep and bear arms, rather than pretend their care about religious beliefs.

But even though the judge's qualifications are entirely about whether or not they're willing to uphold the human rights guaranteed by the constitution, somehow it's more acceptable to ask them about their "devotion" to their religion.

"Are you too devoted to God that you won't protect the right to an abortion or a gun?" [Even though you'd think devotion to God would make you more protective of liberty . . .]

When we could ask:

"Will you vote to strike down abortion-control laws and gun-control laws?"

Posted by: Popehat, shirt, and shoes | Sep 20, 2017 5:33:49 PM

I did not watch the video of the hearing but I did read the law review article in question by her some time ago and found it slanderous. Her conclusion is wrong as a matter of official Catholic doctrine. I have significant trouble with a judge justifying their legal decisions on religious grounds but it becomes even more problematic when those justification don't actually reflect current dogma.

Posted by: Daniel | Sep 20, 2017 5:47:50 PM

Daniel: I did not read the article, but I was under the impression that she had written that a judge may *not* allow his legal opinion to be influenced by his religious beliefs. Is that also your position?

Posted by: biff | Sep 20, 2017 6:00:24 PM

If a judge's job [qualifications] is to apply strict scrutiny to abortion-control and gun-control laws, and there are unable to do so, wouldn't they be unqualified to perform their job?

So we can just ask judges directly, do you believe in abortion-control or gun-control? If so, you can't be a judge in a judicial-review-based republic.

Posted by: Borked Left and Right | Sep 20, 2017 6:17:32 PM

When we can no longer pass amendments, and judges are the only shield for our rights, our entire civilization (the bill of rights) depends on who's on the bench. When that is the case, we need to know ahead of time exactly what the judges think and whether or not they will be willing to strike down abortion-control and gun-control laws.

If we could elect congress-people who wouldn't pass abortion-control and gun-control laws in the first place, we wouldn't have to set all our hopes on judges, but the control laws just keep on coming, so we have to know that our judges will strike them down . . . and not just Frankfurter their responsibilities.

Posted by: Gun-toting democrat | Sep 20, 2017 6:32:57 PM

Paul -- for what it's worth, my thoughts re: Chemerinsky's (et al.'s) efforts to defend/contextualize/excuse Sen. Feinstein's (and others') questioning:


Posted by: Rick Garnett | Sep 20, 2017 6:59:33 PM

I found the op-ed co-authored by Prof. Eric Segall [no not the Love Story guy] was generally correct, including the idea that the senators' might have been somehow confused (shocking) in their questioning should not confuse the religious questioning issue as a whole. Something specifically egregious is said to have been going on here. I think that is overblown.

Segall on Twitter also let me know he found the infamous article very good. I disagree with Daniel's analysis of it as to doctrine, but again, wouldn't let that confuse the specific issue at hand. I'm open to specific criticisms of specific questions & agree some vague defense is of limited value there. But, I saw people with deep vitriol, e.g., say Sen. Durbin was anti-Catholic & find that unfair.

I think the discussion can be a learning experience to help understand how best to cover these questions, questions that in various cases very well might be appropriate to touch upon in certain ways. But, religion is rightly seen as sensitive though this doesn't warrant unfair criticism.

Posted by: Joe | Sep 20, 2017 8:03:42 PM


Your logic works for me. I would apply my qualms regardless of the specific religion.

@biff writes,

but I was under the impression that she had written that a judge may *not* allow his legal opinion to be influenced by his religious beliefs."

That is not a correct characterization of her law review article. The thrust of the article is that any judge who seeks to impose the DP is a bad Catholic because a good Catholic judge would resign instead because the the Church is opposed to the DP. So that is explicitly saying a judge should let religion influence their decision making because the decision to resign or otherwise remove oneself from a case just is a legal decision.

In any event her position is wrong as a matter of official Catholic doctrine. The Catechism of the Catholic Church explicitly OKs the death penalty.

Posted by: Daniel | Sep 20, 2017 8:12:34 PM

"Her conclusion is wrong as a matter of official Sharia doctrine. I have significant trouble with a judge justifying their legal decisions on Islamic grounds but it becomes even more ProblematiC when those justifications don't actually reflect enlightened reformed Sharia."

The article in question made it clear she didn't think judges should justify legal decisions on religious grounds, even to the extent of stretching the law a bit more (as one does, e.g., to avoid requiring applications that would violate the First Amendment) specifically in an area that clashes with one's personal religious beliefs. As Marty Lederman noted, this should actually be appreciated by some people who otherwise would be suspicious of her in some contexts.

Posted by: Joe | Sep 20, 2017 8:28:35 PM

The comments certainly got...interesting! A line from Anchorman springs to mind.

In keeping with what I have said before--that different people have different approaches to comments, and my own preference is to allow them much of the time (including anonymous or pseudonymous comments) but monitor them and prune the more irrelevant, offensive, or out-there comments--I have deleted a few comments, and closed the conversation. Deleting comments is always a judgment call, and in this case I don't doubt that some comments I deleted were meant in a spirit of satire or sarcasm, and I am not judging them harshly. It's my call, and I accept responsibility for it. While I might have written some of the comments that remain differently, and of course disagree with some of them substantively, I don't delete for reasons of substantive disagreement (of course) and I think they contributed sufficiently to the conversation. Thanks to all, including those whose comments I made the regrettable judgment call to delete, for participating.

Posted by: Paul Horwitz | Sep 21, 2017 8:24:22 AM

The comments to this entry are closed.