Lex Cordis Caritas - The law of the heart is Love

by Bishop Thomas John Paprocki

My dear brothers and sisters in Christ,

In an article in the December 1992 issue of the New York University Law Review entitled, “Speaking in a Judicial Voice,” a Circuit Judge for the United States Court of Appeals for the D.C. Circuit argued for “measured motions” in judicial decision-making, saying, “Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade. To illustrate my point, I have contrasted that breathtaking 1973 decision with the Court’s more cautious dispositions.” The author went on to say that Roe v. Wade, which legalized abortion nationally by judicial fiat, “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

The judge who wrote those words was the late Ruth Bader Ginsburg, who was nominated as Associate Justice of the United States Supreme Court shortly after that law review article was published. While herself a defender of permissive abortion laws, Justice Ginsburg nevertheless recognized the “divisiveness” caused by unelected judges who usurp the policy-making role of elected legislators.

This “divisiveness” over controversial issues such as abortion and same-sex marriage, which the Supreme Court has sought to settle without reference to the legislative and executive branches of government, has spilled over to the process of selecting and confirming candidates nominated to serve on the Supreme Court. Gone are the days when the opposing political party would politely defer to the nominee proposed by a sitting president, as happened when Justice Ginsburg herself was nominated by President Bill Clinton and confirmed by a vote of 96–3 on Aug. 3, 1993.

As witnessed in recent Supreme Court nomination hearings, political opponents are not likely to be so courteous or deferential to Judge Amy Coney Barrett, nominated on Sept. 26 to replace Justice Ginsburg on our nation’s highest court. In particular, it will be unfortunate if she is attacked for her Catholic faith, as she was in the confirmation hearings in the U.S. Senate when she was nominated as a judge for the Seventh U.S. Circuit Court of Appeals, based in Chicago.

In that hearing, Sen. Dick Durbin of Illinois asked, “Do you consider yourself an orthodox Catholic?” In response, Judge Barrett said, “If you’re asking whether I take my faith seriously and I’m a faithful Catholic, I am.”

Similarly, in those same confirmation hearings, California Sen. Diane Feinstein referred to the candidate’s Catholic religion saying, “I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern.”

These types of questions and comments in the confirmation hearings are troubling, particularly since Article VI, Clause 3 of the United States Constitution declares that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

One area of a judicial candidate’s background that is germane for consideration is where the nominee went to law school. In this regard, the fact that Judge Barrett attended and taught at Notre Dame Law School is noteworthy not necessarily because it is Catholic, but because her law school affiliation will help to bring some diversity to the jurisprudence of the Supreme Court, the current membership of which are all graduates of only two law schools: Harvard and Yale.

Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Neil Gorsuch all attended Harvard Law School, while Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh all attended Yale Law School. The late Justice Ginsburg also attended Harvard Law School. Harvard and Yale are undoubtedly outstanding law schools, but in a time when diversity is touted as a distinguishing hallmark for our society, it is disturbing that the legal thinking of the highest court in our land is limited to the jurisprudence of two elite law schools. It is time for the Justices of the Supreme Court to include candidates from other outstanding law schools with different perspectives other than the Ivy League schools.

I am personally familiar with Notre Dame Law School as a member of the adjunct faculty. Notre Dame Law School sees itself as “educating a different kind of lawyer.” The Law School’s website says, “At Notre Dame Law School, we see the law as more than just a profession. We encourage students to view the practice of law as a service to others, to explore the moral and ethical dimensions of the law, and to discover their unique roles in furthering the cause of justice. As an eminent law school at the heart of a great Catholic university, our view of legal education is informed and inspired by our religious tradition. It’s a tradition that spans the globe, embraces people of all backgrounds, and illustrates the possibilities of dialogue between reason and faith.”

Judge Barrett is highly regarded by her students as well as her peers. The President of Notre Dame’s Student Bar Association, Keith Ongeri, issued a statement congratulating Judge Barrett on her nomination, saying, “Judge Barrett will serve this country honorably as an upright and thoughtful Justice just as she has done as a judge and a professor. During her time on the bench, she has treated every case before her with openness, honesty, and fairness. And as a professor, she has treated every student with respect, kindness, and fostered an environment for intellectual growth. Judge Barrett encompasses the traits of a different kind of lawyer: principle, diligence, and dedication to her community.”

I congratulate my colleague Amy Coney Barrett on her nomination to serve as an Associate Justice of the United States Supreme Court. I pray that this confirmation process may go peacefully, respectfully, and successfully for her and her family as well as for our nation.

May God give us this grace. Amen.