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A Dress Rehearsal for Amy Coney Barrett’s SCOTUS Hearing

by Matthew Monforton Read Profile arrow_right_alt

Two years ago, Senator Dianne Feinstein (D-CA) hectored Amy Coney Barrett, a Trump nominee for the Seventh Circuit, because “the dogma lives loudly within you.” Feinstein was referring to Barrett’s Catholicism and not too subtly suggesting that Catholic judicial nominees should look for another line of work, not withstanding the Constitution’s admonishment that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Barrett’s faith, and her composure in the face of Feinstein’s bigoted attacks on that faith, made her a hero for many on the Right and gave us hope that she’ll someday soon become Trump’s third Supreme Court nominee.  But Barrett’s Seventh Circuit confirmation hearings will be a picnic compared to what she’ll face if Trump ever tries to elevate her.

So what kind of encore performance could Barrett expect from a Judiciary Committee consisting of Feinstein, Sheldon we’d-hate-to-have-to-restructure-the-Supreme-Court Whitehouse, Mazie we-Democrats-know-so-much Hirono, Richard Da-Nang-Dick Blumenthal, Cory “Sparticus” Booker, Kamala yes-we-can-grab-your-guns Harris, and Amy clean-my-f——comb! Klobuchar, particularly if the latter three are still running for president?

This woke cast will soon offer a preview of coming attractions during confirmation hearings for Lawrence VanDyke, Trump’s latest nominee for the Ninth Circuit.  Democrats won’t be able to attack Van Dyke’s credentials, which include:

  • Graduation from Harvard Law School magna cum laude;
  • Selection as an Editor of the Harvard Law Review, a publication with some noteworthy alums;
  • Selection as a Law Clerk for the D.C. Circuit Court Appeals;
  • Associate attorney at Gibson, Dunn, & Crutcher, one of the nation’s top law firms;
  • Solicitor General for two states (Montana 2013-2014, Nevada 2015-2018);
  • Deputy Assistant Attorney General for the U.S. Department of Justice.

So Democrats will do to VanDyke what they did to Barrett: weaponize a faith-related law review article written by the nominee.  Law review articles can be problematic in confirmation hearings because they represent the carefully considered opinion of their authors and typically go through weeks of revisions and vetting before being published.  So hostile questions about them are not as easy to brush off as questions about, for example, prior court filings, which can always be explained as advocacy for a client rather than the author’s actual opinion.

Barrett co-authored an article analyzing the circumstances in which the federal recusal statute might apply to devout Catholic judges when they are assigned death penalty cases. See Amy C. Barrett & John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1997-1998).  That’s what prompted Feinstein’s rant about Barrett’s “dogma” as well as a question from Sen. Dick Durbin (not the Da Nang one – Durbin is the other Dick on Senate Judiciary), asking Barrett, “Do you consider yourself an orthodox Catholic?”  Imagine Durbin asking Steven Breyer or Ruth Bader Ginsberg during their hearings if they considered themselves “orthodox Jews.”  Durbin would’ve looked like a real….well, you know.  But somehow interrogating Catholics that way is all good.

Like Barrett, VanDyke published a law review article that will draw the wolves’ attention: Not Your Daddy’s Fundamentalism: Intelligent Design in the Classroom, 117 Harv. L. Rev. 964 (2004). Sorry, no link. And good luck googling it– Harvard Law Review doesn’t make itself easily accessible to deplorables.  But don’t worry, staffers for any Senate Democrat will gladly email you a copy faster than you can say “driving Miss Dianne” in Mandarin.

The title of VanDyke’s article, by itself, gives you a good clue as to what Topic A will be for Democrats during his confirmation hearings.  Intelligent Design, according to its proponents, is “a scientific research program as well as a community of scientists, philosophers and other scholars who seek evidence of design in nature.” 

Evidence of “design in nature” is, of course, evidence of a Designer.  Which is why Van Dyke’s article triggered the Left even before “triggering” was a thing.  For liberals in legal academia (which is to say, nearly everyone in legal academia), Harvard Law Review is holy writ, and they viewed VanDyke desecrating it with teleological musings the same way Israelites viewed Antiochus sacrificing a pig in the Temple.

VanDyke, like Barrett, has not only thought about the relationship between law and faith but has had the courage to publish those thoughts.  So his confirmation hearing won’t be a snoozer and, whether or not the whole world is a stage, Senate Judiciary certainly will be when Mr. VanDyke goes to Washington.

The real question is whether the good guys will silently observe or, instead, give prancing woke Democrats the panning they deserve.   Will Ted Cruz, Mike Lee, and Ben Sasse will be able to shine as they always do?  Will Josh Hawley show he’s the cultural warrior he claims to be? And will Lindsey Graham enlarge the pair he started growing during the Kavanaugh hearings?

The answers are, hopefully, yes, yes, and yes.  As important as it is to flip the Ninth Circuit from a left-wing clown show into something saner, there is a larger prize at stake.  If Senate Democrats can use VanDyke’s unapologetic expressions of faith to sink his nomination, Team Javanka might persuade Dad that Barrett isn’t a “safe” pick for SCOTUS.  Which is why Senate Republicans should treat Lawrence VanDyke’s confirmation as the opening act of their performance to put Amy Coney Barrett on the Supreme Court. 

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