Lawyers, judges, and law professors, need to be experts in relevanceand analogy to do their jobs well — including making relevant and cogentanalogies when there is no direct precedent. (prior post) That’s why I’mpuzzled that so many supporters of John Roberts’ nomination to the SupremeCourt insist there is absolutely no reason to believe that Roberts’ Catholic faithand conscience may require him to vote in a prescribed manner on certain issuesthat are considered clearcut and “non-negotiable” in Catholic moral teaching.One very prominent example is the WSJ Opinion Journal piece last week(on its Taste page!) by Prof. Douglas W. Kmiec (“Roberts and Rome,” JulyAmong prominent weblawgers, only the medicant and proudlyCatholic Steve Bainbridge seems willing to point out: “[I]t’s worthremembering that Catholic judges are bound by both [judical ethics]rules and the dictates of their faith. The latter bars formal cooperationteachings on issues such as abortion and gay marriage: “staredecisis is given far less weight with respect to Constitutional issuesthan with respect to statutory or common law decisions.”In his WSJ op/ed, Prof. Kmiec notes: “Yes, the late Pope John Paul II admonishedCatholic public officials to work legislatively to limit abortion — something that evenmost Democrats proclaim to be doing at least during general elections.” He thencomes to the crux of his analysis:“But there is not one iota of church teaching demanding that a judge orjustice exceed the scope of his office to undo, on solely religious grounds,the public law of abortion or any other matter.”Drawing analogies to responsibilities laid upon citizens and legislators, Ibelieve there may indeed be such Church teaching — especially since a SupremeCourt justice would not “exceed the scope of his office” if he or she decides toundo (or reverse sub silentio through severe limits) constitutional interpretationsthat are considered by the Church to promote undeniable evil. The Church’s sideon matters falling into its “non-negotiable evil” category often involves positions thatare in fact espoused by many respected legal minds and could colorably be arguedby any talented justice (or law clerk). This makes a responsibility to decide on thebasis of Church teachings even more likely to exist.To pursue this issue, I think we should be asking John Roberts if he considershimself a “Serious Catholic.” More specifically, does he subscribe to the principleslaid out in the “The Voter’s Guide for Serious Catholics“ (also here) that was widely read and followeddoes, we need to ask Judge Roberts whether he believes those principles andrequirements to be applicable to the actions of a Justice of the United StatesSupreme Court. If he won’t answer or answers in the negative, the rest of us —as lawyers and citizens — are surely allowed to draw our own analogies andconclusions.The Guide states that there are five current issues upon which the Church takesnon-negotiable positions. It then tells how to vote in an “informed manner consistentwith Catholic moral teaching.” The five subjects are: Abortion, Euthanasia, EmbryonicStem Cell Rearch, Human Cloning, and Gay Marriage (the death penalty is specificallyexcluded).for Serious Catholics, which I believe are relevant when thinking about Judge Roberts’mindset as he contemplates his duties as a Catholic and a Supreme Court Justice.
– This voter’s guide helps you cast your vote in an informed manner consistent
with Catholic moral teaching.
– YOUR ROLE AS A CATHOLIC VOTER Catholics have a moral obligation to
promote the common good through the exercise of their voting privileges. It is not
just civil authorities who have responsibility for a country.
“Service of the common good require[s] citizens to fulfill their roles in
the life of the political community.”
This means citizens should participate in the political process at the ballot box.
But voting cannot be arbitrary. “A well-formed Christian conscience does not
permit one to vote for a political program or an individual law that contradicts
the fundamental contents of faith and morals”
A citizen’s vote most often means voting for a candidate who will be the one
directly voting on laws or programs. But being one step removed from law-
making doesn’t let citizens off the hook, since morality requires that we avoid
doing evil to the greatest extent possible, even indirectly.
Some things always are wrong, and no one may deliberately vote
in favor of them. Legislators, who have a direct vote, may not support these
evils in legislation or programs. Citizens support these evils indirectly if they
vote in favor of candidates who propose to advance them. Thus, to the greatest
extent possible, Catholics must avoid voting for any candidate who intends to
support programs or laws that are intrinsically evil. When all of the candidates
endorse morally harmful policies, citizens must vote in a way that will limit
the harm likely to be done.
– FIVE NON-NEGOTIABLES These five current issues concern actions that
are intrinsically evil and must never be promoted by the law. Intrinsically evil
actions are those that fundamentally conflict with the moral law and can never
be deliberately performed under any circumstances. It is a serious sin to
deliberately endorse or promote any of these actions, and no candidate
who really wants to advance the common good will support any action contrary
to the non-negotiable principles involved in these issues.
– ABORTION: The Church teaches that, regarding a law permitting abortions,
it is “never licit to obey it, or to take part in a propaganda campaign in favor
of such a law, or to vote for it” (EV 73). . . . The unborn child is always an
innocent party, and no law may permit the taking of his life.
As Pope John Paul II indicated regarding a situation where it is not possible
to overturn or completely defeat a law allowing abortion, “an elected official,
whose absolute personal opposition to procured abortion was well known,
could licitly support proposalsaimed at limiting the harm done by such a law
and at lessening its negative consequences at the level of general opinion
and public morality” (EV, 73; also CPL 4). . . .Catholics must strive to put
in place candidates, laws, and political programs that are in full accord with
non-negotiable moral values.
– [RECUSAL] Not voting may sometimes be the only moral course of action,
but we must consider whether not voting actually promotes good and limits
evil in a specific instance. The role of citizens and elected officials is to promote
intrinsic moral values as much as possible today while continuing to work
toward better candidates, laws, and programs in the future.
– HOMOSEXUAL “MARRIAGE.” When legislation in favor of the recognition
of homosexualunions is proposed for the first time in a legislative assembly,
the Catholic lawmaker has a moral duty to express his opposition clearly
and publicly and to vote against it. To vote in favor of a law so harmful to the
common good is gravely immoral.”
– WHICH POLITICAL OFFICES SHOULD I WORRY ABOUT? Laws are passed
by the legislature, enforced by the executive branch, and interpreted by the
judiciary. This means you should scrutinize any candidate for the legislature,
anyone running for an executive office, and anyone nominated for the bench.I believe the above quotes give an accurate sense of the Guide‘s tone andthrust. You are, of course, encouraged to draw you own conclusions, applying yourexpertise in legal analysis, relevance and analogy. My legal training and experiencelead me to conclude that:The principles set forth in the Guide would be applied by any “serious Catholic”serving as a judge, there being no important moral difference between a citizenvoting for a candidate (or a legislator voting for a law or program) and a judgedeciding an issue coming before him or her; indeed, the citizen is said to beno less responsible than “civil authorities.” Because the judge has so muchmore direct power in a decision than any one voter or legislator, the judge wouldseem to have an even greater obligation to follow the Church’s mandates;Like a legislator, a lower court judge may be in a position where the “evil” lawcannot be undone, and the judge must then act so as to limit its impact to theextent possible; the judge may use recusal if doing so does not in actuality helpto promote the evil rather than limit it;
So, Rob, Judge Roberts was not being disingenuous in his Circuit Court
nomination hearing, when he stated that his personal views would not
keep him from applying the Roe v. Wade precedent.A Supreme Court justice who is a “serious Catholic” must, especially in theconstitutional realm (but also when interpreting statutes and executive actions),vote in a manner that would prevent or undo any “non-negotiable evil,” or limit it tothe greatest extent possible; a recusal that would let such evil stand is notpermissible (cf. Beldar on recusal).The principles and obligations set forth in the Voter’s Guide for Serious Catholic’s seemhighly relevant to a Catholic judge’s decision-making on the bench. An analogous Judge’sGuide for Serious Catholics would surely contain similar prescriptions and proscriptions —probably with stronger ones for Supreme Court justices, given their power and relativefreedom of action. Would a “serious Catholic” justice vote in opposition to the Church’sposition when dealing with a non-negotiable issue? Would he or she risk performing a“gravely immoral” act — a “serious sin” — if there were any colorable legal argument tobe made consistent with Church teaching? I think advocates on both sides of the Robertsnomination battle know the answer to that question.update (Aug. 3, 2005): Prof. Bainbridge has written a lengthy reply to this post.In response, see my On Bainbridge and Roberts’ Catholicism. At Pro Ecclesia,Jay Anderson said Prof. B’s approach seems reasonable; Eugene Volokh pointsto it as thoughtful.”Analogies from Master Issa:let him pass
like a mosquito, a fly…
solitary priestlike people
an upright scarecrow
can’t be foundsunset–
like demons emerging
the autumn cloudscursing like sailors
at the plum tree…
crowslike marching ants
person after person…
an evening lark– from Kobayashi Issa,translated by David G. Lanoue
August 1, 2005
What if John Roberts is a “Serious Catholic”?
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