Zimrak gave no example in his analysis for Ms. Barrett recusing herself, or deciding a case outside the relevant law, based on her Catholicism.
She’s shown herself capable of doing what’s right legally, while holding and expressing a different opinion personally.
My reading was neither superficial, nor incorrect.
No but as one example, she co-authored a scholarly legal article stating this conclusion: “[W]e believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death.”
That statement alone would give me pause.
Unlike Thomas and Scalia who firmly believe that as a judge they must rely exclusively on the Constitution for any and all rulings as opposed to Barrett who, through her writings, has expressed the “clear” obligations of a Catholic judge when there is a direct conflict between her views of what the Church teaches and the U.S. Constitution dictates: they must recuse themselves.
That distinction is both significant and worrisome.
[Zmirak writing here]
"What answer do Barrett and Garvey offer to the dilemma of a Catholic judge who is unwilling to enforce the clear dictates of the U.S. Constitution on capital punishment? To avoid formal cooperation with evil, she must recuse herself from ruling:
[Barrett][Zmirak]
The moral impossibility of enforcing capital punishment in the first two or three cases (sentencing, enforcing jury recommendations, affirming) is a sufficient reason for recusal under federal law. (p. 306)
The answer gets more emphatic further down:
[Barrett][Zmirak]
[T]he principle at stake in capital sentencing is a moral one, not a factual or simply legal one. And the judge is asked to violate itnot to reason from different legal premises to morally unobjectionable conclusions (like Justice Brandeis did in Whitney). There is no way the judge can do his job and obey his conscience. The judges conscience tells him to impose a life sentence; federal law directs him to impose death. Because the judge is unable to give the government the judgment to which it is entitled under the law, § 45 (p. 334)
It is clear what Judge Barrett believes about the obligations of a Catholic judge when there is a direct conflict between her views of what the Church teaches and the U.S. Constitution dictates: they must recuse themselves."
So the questions to be addressed are:
Is it true that, in a case of conscience like that outlined by Barrett, the only responsibility is recusal? Is it not rather that, as Scalia argued, the Catholic judge is to rule on the basis of the Constitution, and then make a serious appeal to his fellow citizens to amend the Constitution so that injustice will not be enshrined in its principles?
As well, the question likewise arises whether Barrett still believes her only option is recusal, or was that an opinion she believed 10 years ago but does not believe now?
It's a live and important point, because I know by my religious training, and I teach as a parish catechist, that the Catholic Church has a whole raft of teachings which impact public policy, some of them involving exceptionless norms (esp. the teachings on life & death, and on sex/gender/marriage), and if Catholic judges or SC justices are obliged to recuse themselves on cases which touch upon these things, then a Catholic can hardly serve as judge at all --- or even, for that matter, a juror--- in the American system of justice.
Please tell me you see the problem.