The passing of Ruth Bader Ginsburg on September 18 created space for President Trump to do something rarely seen in a single term of a president: selecting one-third of the current Supreme Court justices.
Having already appointed the two confirmed justices Brett Kavanaugh and Neil Gorsuch, Trump’s third selection in his first term is Amy Coney Barrett. This selection has brought out supporters and detractors, of course. However, the overwhelming support of the faith community is my focus here.
Let me clearly add that I support this selection as well.
For many––even those who voted reluctantly for President Trump in 2016––the possibility of a third justice being appointed in four years is beyond their hopes. Furthermore, Amy Coney Barrett is the kind of justice many were hoping for as a Supreme Court justice.
Judging fairly in the kingdom of man
In the theological position called Two Kingdoms, Martin Luther taught that God appointed both the Kingdom of God and the kingdom of man. The Kingdom of God (through special revelation) has a set of ways to live by, laws, and values ordained by God. The kingdom of man likewise (but more through general revelation and common grace) has laws, values, and more created by people.
According to the Apostle Paul, all governing authorities that exist have been established by God (Romans 13:1). While we should honor, respect, and submit to governing authorities, that doesn’t mean that we will agree with every law they pass. In fact, there are some that we would find inappropriate or unjust. We might work to change them, but we still live under them.
When somebody serves as a judge or a justice, they’re actually agreeing to rule in accordance with the laws of the land in the kingdom of man—not the kingdom of God. However, this doesn’t mean that as a citizen of the kingdom of God, our worldview or values don’t influence the judgments we may make about the laws of a land—especially in a land seeking to be a just society. This should be particularly true in a society in which freedom, justice, equality, and equity are touted.
I understand that there are a lot of moral, social, and cultural concerns and issues raised today by both our politicians and citizens. And rather than working out these issues and concerns in the Legislative and Executive branch, many are looking to our Judicial branch to answer these concerns and solve these issues.
That’s not how our government was meant to work.
For some today, there is concern of judicial overreach. A lot of people are asking, for example, why the Supreme Court is now the adjudicator of what our healthcare systems should be and how they should function. They wonder if the Supreme Court has become overly important and operates beyond its original intent in its role in government. Many important issues should be worked out in Congress and signed into law by a president. Yet the Supreme Court has become the place where we now arbitrate our political differences.
Yet there are issues that get to rights and we need a court that will, assuming current projections are correct, be working with laws that come from a progressive House, Senate, and White House. So, while the Supreme Court should not be deciding if the Affordable Care Act stands, it may be addressing issues of the unborn and religious liberty.
Many people wonder if retooling the Supreme Court, with a third of the justices appointed by one president, will lead to changes in abortion laws. Evangelicals (including myself) hope that some of these laws in the United States, which many would find a significantly unjust, will be changed. The Washington Post explained how the U.S. has unrestricted abortion laws that only match about seven other countries in the world.
So, yes, I hope that Amy Coney Barrett is seated and I hope that she, and the many other judges that President Trump has appointed, will lead to change in the unrestricted abortion laws in this country.
Evangelicals are also particularly concerned about issues of religious liberty, and with good reason. The reporting we see on Amy Coney Barrett’s life point to the reality that people of faith are going to be facing challenges.
Image: Ed Stetzer
For example, CNN’s “Facts First” ad campaign explained that whatever you call an apple is an apple. It was quite appropriate in a world where President Trump shouts “fake news” when he does not like a legitimate story. However, this same CNN, while lecturing the president about his fake news, recently called Trinity Schools, where Coney Barrett served as a trustee, “a private anti-LGBTQ Christian school system whose board she served on for nearly three years.”
As CNN explained, “This is an apple. Some people might try and tell you that it’s a banana.” Well, CNN, this is a Christian school which follows Catholic (and evangelical) teaching on marriage and sexuality.
As we move into a new reality, we will need someone on the Supreme Court who knows that, since CNN and many Democrats do not.
Now, those are not the only two issues I’m concerned about. I’m deeply concerned about many issues. Christians believe all people are made in the image of God—refugees, immigrants, DACA recipients, and more. We ultimately hope for the kind of society where justice and treating people rightly is seen across the board, whether people share my evangelical values or not.
And, we want a court that upholds those values, even when the president and congress do not.
If there was a justice who could judge fairly with integrity and justice while maintaining a balance between their dual citizenship in the attempt to honor the Lord as well as the Constitution, Judge Amy Coney Barrett seems to be a good choice.
Both faith-affirming and fair-minded
Much of the early talk, and much of the controversy (aside from filling the seat weeks before the election), about Amy Coney Barrett has been about her devout Catholic faith. Members of the Judiciary Committee actually avoided much of the rhetoric, but outside the chambers, such problems were evident.
As a backdrop, remember, Senator Feinstein’s derogatory comments toward Barrett at her earlier confirmation to the U.S. Court of Appeals that “the dogma lives loudly” in her only brought loud and robust praise among people of faith at the time. After all, the dogma lives loudly in me and in a whole lot of other people of devout faith as well. In all reality, dogma lives loudly in everyone—including Senator Feinstein—the only difference is which dogma. Nevertheless, Senator Feinstein’s remarks motivated and mobilized many faith-based voters to point out concerns about religious tests, something that the Constitution speaks against in Article VI.
But during the hearings, not much has been said about her faith—although a hot mic (allegedly) caught Senator Feinstein saying, Barrett’s abortion stance is “deeply personal and comes with her religion.”
Rather, over the past several days Judge Barrett has been pressed heavily on the Affordable Care Act, her views on abortion and Roe v Wade, immigration, voting rights, and LBGTQ past rulings. According to a writer for The New York Times, “Judge Amy Coney Barrett took a particularly rigorous approach to the strategy used by all modern Supreme Court nominees: avoiding saying anything about issues that could turn into court cases and saying almost nothing about cases that courts have already decided.”
While most people (including the Judicial Committee) know where Amy Coney Barrett stands regarding her faith, senators chose to refrain from making it a main issue. Rather, many senators pressed Judge Barrett in an attempt to draw out Barrett’s personal opinions or how she would rule on potential cases. However, Barrett didn’t respond, taking the approach of most recent appointees.
At one-point she expressed, “If I give off-the-cuff answers, then I would basically be a legal pundit. I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully with an open mind.”
And yes, I know that four years ago, stating the election year as a reason, Senate Republicans did not hold hearings for President Obama’s SCOTUS nominee Merrick Garland. I wish they had. I don’t know that I would have ultimately supported his confirmation, but there was no opportunity to form an opinion. I would have preferred they at least hold a vote, and carry out their duty to advise and consent, even if they ultimately had not consented. But I can’t change the fact that they did not, and supporting the hearings of Amy Coney Barrett today is not an inconsistent position —in fact, it’s the opposite of one.
Senators McConnell and Graham have been accused of hypocrisy because they have been hypocritical. I am not here to defend their past words and actions.
For those concerned about the timing so near an election, let’s remember it was Justice Ginsburg who (rightfully) said every president gets a four-year term. And this term is not over yet.
While we await Amy Coney Barrett’s confirmation, the path forward should be clear. The mistake of not holding hearings in the part because of an election year does not imply a total change in precedent. The religious belief of an individual does not disqualify public servants. The Supreme Court was created to be distinctly committed to the rule of law and the constitutional government, not to the political dynamic of its two-party system. Now, in the midst of bipartisan division and vitriol, the constitution should be followed and, I believe, Justice Amy Coney Barrett should be affirmed.
In conclusion, some evangelicals supported the president with a significant amount of unease. They’ve heard some of the awful things he’s said and done, yet because of his appointments to the judiciary, they’ve pulled the lever for him. Maybe that was you, perhaps not.
However, we are about to enter a much more progressive era in government. I am thankful that the Supreme Court will be there to be certain that the rights of people— all kinds of people, not just my rights— are given the protections of the rule of just laws and the constitution.