Democrats, be careful with Amy Coney Barrett

The Democrats have a problem with President Donald Trump’s Supreme Court nominee, Judge Amy Coney Barrett: her devout Catholicism. Will the Democrats be able to question Barrett on her objectivity and membership to the heavily Catholic community People of Praise without making her confirmation an interrogation on her Catholicism? While questions about her religious beliefs are not off-limits for the confirmation hearings, Senate Democrats have to be mindful to not question her solely about her religious affiliation, but also about whether she adheres to her religion or to the Constitution. 

This is a rather fine line, and Democrats in the past have already failed with Barrett. In 2017, Trump nominated Barrett to serve as a judge of the United States Court of Appeals for the Seventh Circuit. During Barrett’s confirmation hearing, Sen. Dianne Feinstein, D-Calif., said, “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.” What Feinstein implied is that those of devout faith are not fit to serve in the judicial branch of the federal government of the United States. 

I’m not really interested in whether or not it’s “fair” that Senate Majority Leader Mitch McConnell, R-Ky., is allowing President Trump’s nomination to receive a vote in the Senate. While it is hypocritical, it’s constitutional, and he has every reason to do so. But I am concerned about the impact of an open seat of the Supreme Court and what it means for polarization and election mobilization.

If the Senate fails in confirming Barrett to the court before Election Day, I expect to see mass voter turnout to reelect Trump. Many conservatives voted for Trump for the Supreme Court, as they want the court to have a conservative majority. This will be furthered by anger if the Democrats make her confirmation about her Catholicism. While Joe Biden, a Catholic, is expected to win the popular vote, the Electoral College vote will likely be much closer considering polling data in swing states and the nature of the electoral college. Mobilizing conservative voters could help push Trump to victory in these toss-up swing states, including Arizona, Wisconsin, Florida and North Carolina. 

This is why Senate Democrats need to be careful with their questioning of Barrett. The U.S. is a heavily Christian country; about 70% of Americans identify as Christian, including Catholics. Highly or moderately religious Catholics and Christians could see questions about Barrett’s Catholicism as attacks by the Democrats on Christianity and Catholicism as a whole. This could encourage these voters to vote for Trump. 

This will be especially true if vice presidential nominee Sen. Kamala Harris, D-Calif., questions her on this issue. As a member of the Senate Judiciary Committee, Harris will question Barrett. If Harris asks questions or makes statements about Barrett’s Catholicism in the same vein as Feinstein in 2017, the Democrats will have a harder time convincing moderate or conservative Americans unsure of who to vote for or if they will vote at all to vote blue in November. 

This is not to say that Barrett’s membership in People of Praise should not be interrogated. I personally want to know more about this group, specifically the submission to a spiritual “head” and how that would affect her work in the Supreme Court. Barrett should also be questioned about her past rulings as a circuit court judge and how they were impacted by this group. 

But Senate Democrats must clarify that they are questioning her membership to a highly religious group and how it will impact her ability to make decisions, not how her Catholicism itself will affect her rulings. This is a difficult way to approach questioning a Supreme Court nominee. But too much is at stake for Senate Democrats to be careless in their questions and invite accusations of anti-Catholic bigotry, as Sen. Ben Sasse, R-Neb., suggested in a statement Tuesday. 

It is very likely that Barrett will be successfully confirmed to the Supreme Court. There are 53 Republican senators, and only two Republicans have pledged to vote no on Barrett’s confirmation. The Democrats would need two more no votes in order to deny her confirmation, assuming all of the senators in the Democratic Caucus vote no as well. But Barrett’s confirmation is not the end. Trump could get to pick the replacement of Justice Stephen Breyer, who is 82 years old, in addition to fulfilling his other duties as president. 

The death of Justice Ruth Bader Ginsberg is undoubtedly a loss to the liberal side of the court and to our country, but we must face reality. Barrett’s confirmation is likely, but the reelection of Trump may not be. Senate Democrats must tread lightly when asking questions about her faith and focus on her membership to People of Praise and her previous decisions if they want Joe Biden, the party’s Catholic nominee for president, to be inaugurated as the 46th president on Jan. 20, 2021.

Lydia Storella can be reached at storella@umich.edu.