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Why GOP senators spoke at length about religion at the Barrett hearing

Posted October 12, 2020 7:57 p.m. EDT

— Listening to Republican Sen. Josh Hawley during one of the most heated moments of Monday's Senate Judiciary Committee hearing, a bystander might have thought Democrats had spent the day attacking Judge Amy Coney Barrett's Catholic faith.

"When you tell somebody that they're too Catholic to be on the bench, when you tell them they're going to be a Catholic judge, not an American judge, that's bigotry," the Missouri Republican said. "The pattern and practice of bigotry from members of this committee must be stopped, and I would expect that it be renounced."

But the only members who spent significant time on Barrett's faith during the hearings on Monday were the Republicans. Hawley at one point even suggested that a key court precedent related to Roe v. Wade should be off-limits, deeming it a veiled attempt to discuss her religion.

Committee Democrats see Barrett's faith as a third rail, to be avoided at all costs, especially after missteps during her confirmation hearing for a federal appeals court three years ago. For them, Monday's hearing was not even so much about her record as it was about the upcoming election, GOP hypocrisy and the Affordable Care Act.

Why then did the Republicans keep referring to attacks on her religion? One key reason is that conservatives already feel emboldened about the Supreme Court's direction when it comes to religious liberty.

Last term, the court moved decisively to the right on the issue, allowing more religion in public life. And if Barrett is confirmed quickly, she will hear a major religious liberty case on November 4 brought by a Catholic foster agency that was denied a government contract because it refused to work with same-sex couples. The agency, Catholic Social Services, sued under the First Amendment. Religious conservatives want to use the case to overturn major precedent and loosen restrictions on the use of taxpayer funds to support religion.

But there is another reason for Hawley's comments that goes to the confirmation process in general.

"Supreme Court confirmation hearings are political theater, especially on the first day, when senators make their opening statements," said Jonathan H. Adler, a professor at Case Western Reserve University. "Democrats are obsessing about the ACA, and Republicans are preemptively striking Democrats for attacking Judge Barrett's religion."

Hawley's complaints were rooted in an exchange in 2017, when Barrett appeared before the committee for her confirmation to the lower court.

Back then, Sen. Dianne Feinstein, a California Democrat, pressed Barrett on her writing about faith and the law during the years she spent as a professor at the University of Notre Dame. In a tense exchange, the senator questioned whether the judicial nominee could separate her Catholic views from her legal opinions.

"The conclusion one draws is that the dogma lives loudly within you," Feinstein said. "And that's of concern when you come to big issues that large numbers of people have fought for years in this country."

The exchange invigorated and emboldened religious conservatives, who said Barrett had been a victim of anti-Catholic bias. It also put Barrett on the conservative map, and soon after, supporters of religious liberty began pressing for her to be added to President Donald Trump's Supreme Court short list if a vacancy were to arise.

On Monday, Republicans seized on that exchange.

"There's no religious test to serve on the Supreme Court. Why? Because the Constitution says so," said Sen. John Cornyn of Texas.

"This committee has acted like it's the job of the committee to delve into people's religious communities. That's nuts," said Nebraska's Sen. Ben Sasse. "Because in this committee, and in this Congress, and in this constitutional structure, religious liberty is the basic truth, and whatever you or I or Judge Barrett believe about God isn't any of the government's business."

Hawley also talked about questions that Democratic Sens. Kamala Harris of California and Mazie Hirono of Hawaii had asked Brian Buescher, who was up for a seat on the US District Court for the District of Nebraska in 2018, about his membership in the Knights of Columbus, a Catholic fraternal organization founded in 1882.

"For those watching at home, that's right, you heard me correctly," Hawley said. "The Democratic nominee for vice president of the United States, who has questioned past nominees who've come before this committee about their membership in Catholic fraternal organizations."

As for Barrett, she brought up her religion herself, never shying from the topic.

"I believe in the power of prayer," she told the senators, "and it has been uplifting to hear that so many people are praying for me."

Griswold v. Connecticut

Throughout the day, the focus on Democrats' part was largely the future of the Affordable Care Act, a case that will be heard by the Supreme Court -- and maybe Barrett -- a week after the election. And while the they talked about the possibility of invalidating the entire sprawling law amid the pandemic, there are more narrow ways the court could rule, by severing more controversial portions but allowing other provisions to stand.

Sen. Chris Coons, a Delaware Democrat, agreed that religious liberty is "foundational to our civics and our republic." He said his side of the dais would focus not on Barrett's faith, but on what's she written and what she has said. He expressed particular concern about the possibility that the court's new conservative majority might overturn long-settled precedent. He mentioned a 1965 case called Griswold v. Connecticut establishing that married couples have a right to obtain and use contraception in the privacy of their own homes as well as Roe v. Wade, decided in 1973, which legalized abortion nationwide.

His comment triggered a fierce reaction from Hawley. "I just heard my colleague, Sen. Coons, make a reference to an old case, the Griswold case, which I can only assume is another hit at Judge Barrett's religious faith, referring to Catholic doctrinal beliefs," he said.

"This is the kind of thing I'm talking about, and this is the sort of attacks that must stop," Hawley concluded.

Griswold comes up in most every confirmation hearing because its legal underpinnings concerning the right to privacy surfaced again in Roe v. Wade. Roe is almost 50 years old, but it remains a central focus of the fight to confirm justices to the Supreme Court, and is usually discussed in the context of Griswold in these hearings.

In fact, during the 2017 Barrett hearing, Republican Sen. John Kennedy of Louisiana asked her about it.

"Do you think there's a right to privacy in the Constitution? I mean, when Griswold came down and you read it, what did you think? Did you say, 'This is a well-reasoned opinion, and I agree with it?' " he asked.

Coons declined to respond directly to Hawley's attacks.

"I'm not going to help Sen. Hawley run for president," Coons said. "I mean my focus today was on the concerns that I'm hearing from Delawarians, which was that there is a Supreme Court case a week after the election where the Affordable Care Act is at risk."

Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, said: "Senate Republicans are focusing on a false ruse to try to distract from the fact that health care access for millions and other civil rights are at stake with this nomination."

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