Tuesday, August 02, 2005

Catholics Need Not Apply

Not so great in Slate is Chris Hitchens's piece Catholic Justice. Says Galley Friend C.L.:
If I'm not mistaken, Hitch is subtly calling for the institution of a "No Catholics Need Apply" policy for Supreme Court nominees with this piece. Funniest bit: He calls Kennedy--ANTHONY KENNEDY--"strong in the faith."

And what then to make of his vote on Casey, Hitch? Kinda shitcans your entire premise, no?

8 comments:

arrScott said...

Well, C.L. is mistaken. Hitchens, whom I am loathe to defend, is calling for public acknowledgment of anything that might interfere with a judge's oath to uphold the Constitution and the laws of the land, not for a ban on Catholic judges. If Roberts was a Wahabbist Muslim, we sure as heck would want to know whether and how how he thought his religious duties would affect his performance of his civic duties. Need I mention that, as the son of a Catholic mother, I do not mean to imply that Roman Catholicism is morally similar to Wahabbist Islam?

Nonetheless, it is true that some people believe it is proper to put civic duties ahead of religious duties when performing civic functions. Others disagree. Neither answer is necessarily the right one, but we should know what John Roberts has to say on the point. Personally, I would not want a Supreme Court justice to recuse himself if he feels he cannot uphold the Constitution and the laws of the land without violating a church injunction, whether that church is my mother's Catholic cathedral or my own Unitarian meeting house. As I see it, if you cannot uphold the laws of the land in all cases, you ought not be a judge at any level.

But there is certainly a reasonable case to be made in favor of the kind of judicial activism inherent in Roberts' alleged position on this question. The point is that we should know what his position is on conflicts between the laws of the United States and the teachings of his church. If a majority of the Senate agrees that judges are right to opt out of ruling in cases where the law conflicts with their theology, fine. Why assume that asking a question necessarily means that the wrong answer is disqualifying? It might merely be enlightening. The Senate isn't doing algebra or counting the eagle feathers in Roberts' headdress. It's assessing his character, and knowing whether he will apply the law, substitute his own theology for the law, or stand aside when church and state conflict in his courtroom is an important step in discovering Roberts' judicial temperament.

Conservatives who wish for religion to play a more prominent role in public life should take notice: This, what is happening with Judge Roberts today, is exactly what it means for religion to have a more prominent role in politics. It means that we will talk critically and openly about religion, that a man's faith will color the public's assessment of his fitness for office, and that Congress and the judiciary will get increasingly into the business of debating theology.

Anonymous said...

A religious test is a religious test is a religious test. Senators have no business asking Roberts or any other nominee for federal office about his faith or its connection to the job he is being asked to do. If they want to know his views on church-state separation, they should ask about that, and leave his Catholicism out of it. Jeez, what is this, 1955?

Anonymous said...

Talk of conflict between Catholicism and the Constitution is a smoke screen that Hitchens and others will use to try and scare the ignorant. The Constitution is a relatively short document with open architecture guidelines that are (despite Hitchens' imagination to the contrary) based in traditional Judeo-Christian ethics. Nothing in the Catholic religion is going to find an actual impasse with the Constitution. What may reach an impasse is Catholic belief and certain existing, morally questionable laws and court decisions. And a justice with some moral fiber may overturn those to better align with the Constitution. This is what the activist left cannot tolerate and why they'll continually try to confuse the issue by equating specious reasoning in earlier courts with the Constitution itself. Don't be fooled.

arrScott said...

Nothing in the Catholic religion is going to find an actual impasse with the Constitution.

What about the death penalty? It is the law of the land at the federal level, it is specifically allowed by the Constitution, and is applied in more states than not. Yet the last several popes have been crystal clear in maintaining, as Jesus made clear with his own actions, that the death penalty is evil. Although I oppose capital punishment, I would not want a judge to substitute his own moral whims or to recuse himself from the case when the death penalty comes up for judicial review. Bringing the laws of the land into greater or lesser compliance with certain moral precepts is the job of the legislature - and, to the extent of the manner of enforcement, of the executive - not the judiciary.

Others may disagree. Some might prefer that a judge, following the teachings of his church that the death penalty is always evil, would substitute his own moral code for the law and overturn capital convictions, or that he would recuse himself from deciding in a case where his civic and spiritual duties conflict. There is no one objectively right or wrong approach, but the approach Roberts expects to follow will tell us something about his judicial temperament.

If it is not possible for Catholic dogma to conflict with a judge's civic duties, why was that not Roberts' answer when asked what he would do when the two conflict? He could have said, "Sir, I do not believe that any such conflict is possible," if that is what he believes. He did not say that. So either Roberts believes that the teachings of his church can conflict with his duties as a judge, or he is a liar.

In any event, Roberts' answer to questions about his approach to conflicts between personal conscience and public duty will be revealing of his character and temperament. The only problem would be if we ask him the question only because he is Catholic. It is an important question that we ought to ask of every judicial nominee as a matter of course, rather like asking what, if any, judicially enforceable rights exist under the Ninth Amendment.

It's time that the right realizes that, in an overwhelmingly Christian country, being asked about your faith is not persecution. Nor is asking a man how he reconciles conflicts between personal conscience and public duty a "religious test" of the sort the Constitution forbids.

Anonymous said...

"What about the death penalty? It is the law of the land at the federal level, it is specifically allowed by the Constitution, and is applied in more states than not. Yet the last several popes have been crystal clear in maintaining, as Jesus made clear with his own actions, that the death penalty is evil."

Why do people who try to make this argument keep bringing up the death penalty? The personal opposition of popes to capital punishment doesn't change the fact that, unlike abortion, official Catholic teaching has never stated that the death penalty is contrary to Christian morality. This example is in the dictionary under the expression "red herring."

As for Jesus, I'd be interested to know what "actions" of His demonstrate His clear opposition to the death penalty.

Anonymous said...

Hitch disputes Scalia's interpretations of Christian influence on U.S. History, and calls him a fool. Hey, there's a mismatch, Hitchens and Scalia: which one would you say really understands U.S. History??!

arrScott said...

A person who must ask which of Jesus' actions might suggest his disapproval of capital punishment needs to read the Gospel of John.

As to capital punishment and the Church, well, I'm not a Catholic myself, only related to a lot of them, so I could be in error. Catholic doctrine since 1871 has held that the pope is infallible. In his 1995 encyclical Evangelium Vitae, Pope John Paul II declared that capital punishment was only morally acceptable in certain extreme cases that he described as being so rare as to be "practically nonexistent" in the modern world.

So the question is whether papal encyclicals represent "official Catholic teaching." Perhaps I am wrong to assume that they do. The First Vatican Council, however, leaves little room for believing that there is such a thing as a pope's "personal" moral opinion. The pope's teachings are infallible, and the last pope tought that the death penalty is in almost all cases contrary to Christian morality.

But even if a papal encyclical is nothing more than a diverting suggestion for Catholics, a sort of Vatican version of an Andy Rooney monologue, the point remains that it is possible for the laws of the land to require a judge to issue a ruling that is contrary to Catholic teaching - or anyway John Roberts believes such a clash between law and Catholic morality to be possible. How he would deal with a conflict between civic duty and personal morality, as he sees them, offers a revealing insight into his temperament. It is a question that ought to be asked of any applicant to a position of public trust.

Anonymous said...

arrScott writes:

"A person who must ask which of Jesus' actions might suggest his disapproval of capital punishment needs to read the Gospel of John."

Translation: "I don't know." No where does Jesus ever deny the right of states to execute criminals. In fact, He told Pilate that the only reason he had any power over anyone (including Jesus) was because God had given it to him.

As for the connection between papal encyclicals and infallibity, the Catholic Encyclopedia says:

"As for the binding force of these documents it is generally admitted that the mere fact that the pope should have given to any of his utterances the form of an encyclical does not necessarily constitute it an ex-cathedra pronouncement and invest it with infallible authority."

That such utterances should be received and considered seriously by all Catholics is certainly so. That they are in and of themselves binding is not. So much for capital punishment.

Returning to the larger point, arrScott writes, "the point remains that it is possible for the laws of the land to require a judge to issue a ruling that is contrary to Catholic teaching." Actually, it doesn't. As a Supreme Court justice, neither Roberts nor any of his fellow SCOTUS Catholics would ever be required to rule on whether a particular law was right or just according to Catholic teaching. They would only be asked whether it was legitimate according to the US Constitution and the statutes flowing from it. Roberts has made clear in various public statements and documents he's written or contributed to that he doesn't approve of judges imposing their personal policy preferences or moral opinions on the law. I genuinely doubt that he cares, as a judge, whether Roe v. Wade accords with Catholic teaching. The evidence is that he would rule on abortion cases, and if need be on Roe itself, in terms of whether it accords with the Constitution. If the Senate Judiciary Committee wants to ask him whether he thinks it does or not, that's a legitimate question. Asking him about his faith, and the role it will play in his decisions as a Justice, is to suggest that there are aspects of his faith that would disqualify him from serving, i.e., to ipso facto impose a religious test. Simply the fact that this issue is never raised about Protestants (especially the liberal variety) or Jews is the best practical demonstration that we're talking about a violation of Article VI.