[Mrs. Don-o]

Hugh, with all due respect --- and I do respect you, because if I didn't, I wouldn't waste my time pointing this out --- your analysis can hardly be considered adequate if you do not attend to the very core of Zmirak's argument, which is not even about Catholicism per se (of which he is a loyal proponent), but about recusal. Here's the kernel:

[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]
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)

[Zmirak]
The answer gets more emphatic further down:

[Barrett]
[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 it—not 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 judge’s 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)

[Zmirak]
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.

[Hugh the Scot]

Thank you. Yes, I do see the concern, as I stated earlier. I do not however, see this as a reason to question Barrett’s capability to serve as a Supreme Court Justice to any greater degree than one would with any faithful Catholic.

Her academic opinions are public, whereas others are not.

It’s, in my opinion, concern trolling designed specifically to poison conservative opinion against a really solid conservative justice, and does in fact make that argument BASED ON HER CATHOLICISM.