By Kelly Shackelford, President, CEO & Chief Counsel
Article VI of the Constitution clearly prohibits any religious test for public office. Nevertheless, with the recent nomination of Judge Amy Coney Barrett to the Supreme Court of the United States, Senate Democrats have started to revive the scurrilous attacks on her faith that they began three years ago. New polling suggests Senate Democrats should reconsider their rhetoric.
A recent poll conducted by Mason-Dixon Polling and Strategy, commissioned by First Liberty Institute, reveals that almost two-thirds of Americans believe judicial nominees should not be questioned about their religious beliefs as part of the confirmation process. Instead, Americans seem to want senators to stick to a nominee’s qualifications and judicial philosophy.
If the senators did that, confirming Judge Amy Coney Barrett to the Supreme Court would be a no-brainer. Even those who oppose her confirmation have a tough time arguing she isn’t qualified for the job. Many from across the ideological spectrum who have worked with Judge Barrett sing her praises, whether it is her fellow clerks, her fellow law professors or the hundreds of her former students. Many of these endorsements highlight the most important reason Barrett was nominated: her commitment to an originalist understanding of the Constitution.
As Barrett herself put it back in 2018, “the text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today.”
However, the cabal of Democratic senators who oppose Barrett’s confirmation continue to kowtow to their party’s progressive wing, with some refusing to even meet with her. The reason is simple enough. The radical Left are sworn enemies of our constitutional system. They’re also hostile to people of faith. The Left will stop at nothing to oppose the confirmation of a self-described originalist and devout Catholic like Judge Barrett.
Ever since Justice Anthony Kennedy retired in July 2018, Judge Barrett has been on the president’s short list for the nation’s high court. After Justice Brett Kavanaugh received the nomination for Justice Kennedy’s seat, Barrett became the heir apparent in the eyes of many conservatives. And on September 26, 2020, President Trump nominated her to the Supreme Court. Barrett’s nomination was met with near-universal approval from those across the conservative spectrum, uniting Catholics, evangelicals and many others.
During Barrett’s 2017 confirmation hearing to a seat on the U.S. Court of Appeals for the Seventh Circuit, Democrats infamously made Judge Barrett’s Catholic faith a point of contention. Senator Dianne Feinstein (D-CA)—the top Democrat on the Senate Judiciary Committee—scolded her with, “the dogma lives loudly within you,” a reference to Barrett’s strongly held religious beliefs. Senator Dick Durbin (D-IL) could barely hide his contempt as he asked Barrett, point-blank, “do you consider yourself an orthodox Catholic?” Such questions have no place in a confirmation hearing, and the Constitution offers them no quarter.
Yet if Barrett is confirmed, those who oppose her have an even more dangerous plan. Following the Biden-Harris campaign’s lead, the radical Left has openly embraced the idea of “court packing” as revenge for Barrett’s confirmation. That is, if former Vice President Biden wins the election next month, he will seek to increase the number of seats on the Supreme Court so that progressive liberals have a guaranteed majority to ensure their policies cannot be overturned.
This reveals a great deal about the difference between how conservatives and progressives view the role of judges in our constitutional order. Conservatives believe—as does Judge Barrett—that judges should interpret the law according to its text at the time it was written. Progressives believe judges should use their power to dictate their preferred policy objectives. For all their supposed concern about Barrett potentially overturning precedents they hold dear, progressives seem to have no problem overturning the 150-plus-year precedent of a nine-person Supreme Court.
Here again, the Left is woefully out of step with the American public. According to the Mason-Dixon poll commissioned by First Liberty, a strong majority (54 percent to 35 percent) of Americans oppose the Left’s “sore loser” plan to pack the Supreme Court. Not surprisingly, nearly 60 percent of Democrats support packing the Supreme Court and 85 percent of Republicans oppose it. Perhaps more importantly, self-identified independent voters overwhelmingly reject the radical Left’s plan to pack the Court.
In Judge Barrett, the Senate has the opportunity to confirm a judge who, like her former boss, the late Justice Antonin Scalia, is committed to the Constitution according to its terms—and not her personal predilections. The nation knows a good nominee when it sees one, even if some Democratic senators do not.
We have had enough difficult decisions to make in 2020. The confirmation of Judge Barrett to the Supreme Court should not be one of them.
Note: This article was first published on Newsweek and is re-published here with permission. The article presents the main points of an op-ed published in Newsweek. This work was authored co-authored by Kelly Shackelford. The full article can be found on the Newsweek website, here.