Amy Coney Barrett hearings have Jews divided along denominational lines

Barrett’s supporters – including many Orthodox Jews known to be socially conservative – reject the notion that the mother of seven’s strong faith is a downside.

US Court of Appeals for the Seventh Circuit Judge Amy Coney Barrett reacts as US President Donald Trump holds an event to announce her as his nominee to fill the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg. September 26, 2020.  (photo credit: CARLOS BARRIA / REUTERS)
US Court of Appeals for the Seventh Circuit Judge Amy Coney Barrett reacts as US President Donald Trump holds an event to announce her as his nominee to fill the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg. September 26, 2020.
(photo credit: CARLOS BARRIA / REUTERS)
NEW YORK – With hearings in the US Senate to confirm Amy Coney Barrett as a Supreme Court justice starting this week, American Jews are sharply divided along denominational lines regarding the nomination.
Barrett, nominated by US President Donald Trump last month to fill the vacancy created by the death of Ruth Bader Ginsburg, would become the sixth Catholic on the bench, alongside two Jewish justices and an Episcopalian. Never before has the nation’s highest court been so predominantly one religious denomination.
Barrett’s confirmation would tilt the conservative balance of the court to a 6-3 majority. Jewish leaders have expressed mixed reactions, furthering the political divide between denominations amid an already contentious presidential election.
Concern over the court’s religious makeup and willingness to uphold separation of church and state barely came up in the confirmation hearings of Sonia Sotomayor, Clarence Thomas, Antonin Scalia, John Roberts, Samuel Alito and Brett Kavanaugh, all Catholics. Kavanaugh was appointed by President Donald Trump in 2018, as was Neil Gorsuch, an Episcopalian with Catholic ties, in 2017.
But Barrett’s religious beliefs appear to be under far more scrutiny, perhaps because of its perceived fervor.
In 2006, Barrett reportedly told graduates of Notre Dame Law School, which she had attended and at where she later taught, they should see their upcoming legal careers “as but a means to an end... and that end is building the kingdom of God.”
Barrett later spoke five times, starting in 2011, at the Blackstone Legal Fellowship, a conservative training program established to inspire a “distinctly Christian worldview in every area of law,” for Christian lawyers and run by an organization that opposes same-sex marriage and LGBTQ rights, according to a report in The Washington Post.
Barrett’s supporters, including many Orthodox Jews known to be socially conservative, reject the notion that the mother of seven’s strong faith is a downside.
“I’m very pleased that she’s been nominated for a seat on the Supreme Court,” Orthodox Washington attorney Nathan Lewin told The Jerusalem Post. “I am confident that Judge Barrett will join Justices Thomas, Alito, Gorsuch and Kavanaugh, and probably Chief Justice Roberts, in supporting religious rights in the Supreme Court because of her prior record and because she is apparently devotedly religious as a Roman Catholic.”
Lewin, who has argued 28 cases before the court, including landmark cases representing Chabad-Lubavitch in federal litigation over the display of menorahs on public property, and federal lawsuits relating to the libraries of the fifth and sixth Lubavitcher Rebbes, cited religious accommodation in the workplace as an issue of great and timely importance to the law, one he is confident Barrett will uphold.
Lewin said he opposes LGBTQ rights in the workplace if they come at the expense of religious rights.
“If there is a question between LGBTQ sexual conduct and freedom of religion, freedom of religion is paramount,” Lewin told the Post. “That’s a view that now a majority of the Supreme Court and, I think, the new justice will agree with as well. It was a view not shared by Justice Ginsburg.”
Considered likely to rise to the Supreme Court docket this term is Dalberiste vs GLE Associates, the case of a Seventh Day Adventist who sought Saturdays off from his power-plant employer.
This could overturn the 1977 case TWA vs Hardison, which set a legal precedent that religious employees have been fighting ever since. The ruling upheld the right of the now defunct Trans World Airlines to fire a man whose Christian sect prohibited working on Saturday.
Lewin argued the case before the Supreme Court 43 years ago. Ultimately, it was decided that religious accommodation in the workplace only had to be de minimis. Lewin referred to the ruling as “terrible for religion.”
“My view is that all these years after I argued this case, I will win it in the Supreme Court,” he said. “I think the court with Judge Barrett will agree, which it did not in TWA v. Hardison, that you would have to do more than a de minimis accommodation for religious observance.”
OTHERS REJECT the notion that Judge Barrett’s ideology might influence her decision-making.
“As far as we’ve reviewed thus far, she did not participate in any cases in the Court of Appeals [for the Seventh Circuit] that dealt with [religious] issues,” said Nathan Diament, the Orthodox Union’s Washington director. “So we don’t have a record in the judicial context of where she is on these issues.”
Abba Cohen, Agudath Israel of America’s Washington representative, told the Post the ultra-Orthodox advocacy group rarely formally endorses Supreme Court justices. They are prepared to do so, however, if the Senate battle addresses the basis of Barrett’s religion as a cause of concern in assessing her nomination to the court.
“Whether she’s a devout Catholic, there should never be a religious test for public office,” he said.
There was tremendous concern when the Senate considered her for the Court of Appeals, not only over her philosophy, but whether her religion would allow her to be an impartial judge. There were different opinions, and there is concern it is going to happen to her again.
“We should never look at a judge’s gender, religion or anything else as a foundation [denying] that they should be able to rule impartially,” Cohen said. “A good justice is committed to interpreting the law fairly and honestly. I would expect the same of Judge Barrett. That’s the sign of a good justice. Let’s try not to put too much stock in her past opinions.”
Not everyone is willing to ignore Barrett’s past statements.
The Conservative and Reform movements, whose members vote more than 70% Democrat according to most surveys, voice concern that the Republican nominee would undo the work of her predecessor, Ginsburg, who died on September 18 at the age of 87. Ginsburg’s legacy includes the fight for equality for women. For liberal Jews, for whom Ginsburg was a pop-culture icon as well as feminist role model, the thought of Barrett replacing her is unbearable.
Perhaps the most prominent case that could be overturned if Barrett is confirmed is Roe vs Wade, the 1973 decision that preserved the right to abortion.
In 2006, Barrett signed a newspaper advertisement in Indiana’s South Bend Tribune that denounced the “barbaric legacy” of Roe vs Wade.
“We have concerns, specifically in the area of reproductive rights,” said Jay Kornsgold, treasurer of the Rabbinical Assembly, the international association of Conservative rabbis. “Based on everything we know, I would expect her to not vote in line with our resolutions on being pro-choice or on healthcare. That does cause us concern.”
The Union for Reform Judaism (URJ) released a statement on Thursday urging senators to reject Barrett’s nomination.
“As an academic and on the bench, Judge Amy Coney Barrett’s record makes clear that her appointment to the Supreme Court would jeopardize the most fundamental rights we have long supported, including reproductive rights, healthcare, LGBTQ equality and more.”
“We have weighed in only rarely on Supreme Court nominations,” said Jennifer Brodkey Kaufman, URJ North American board chairwoman. “There is too much at stake to be silent now. Judge Barrett’s record threatens the values we have championed as Reform Jews, and she should not be confirmed.”
In her speech at the White House Rose Garden during a September 26 ceremony announcing Trump’s nomination of her, Barrett said she would separate her personal perspectives from her legal resolutions.
“Judges are not policy-makers, and they must be resolute in setting aside any policy views they might hold,” she said.
The Senate Judiciary Committee began Barrett’s confirmation hearings on Monday, just weeks before the November 3 presidential election.
Many are doing their best to keep an open mind on the controversial nominee.
“As Yogi Berra said, ‘Predictions are very difficult, especially when they’re about the future,’” said the Orthodox Union’s Diament. “Whatever folks say about how people nominated to the court may vote in the future, there are always surprises.”