Hartnett on the Catholic Judge

Seton Hall law prof Ed Hartnett has emailed me his own thoughtful take on our conversation.  It's well worth reading and pondering:

Cardinal Dulles has emphasized that judges’ “primary task is to apply the existing law, not to decide cases according to their personal convictions about what the law ought to be.” Avery Cardinal Dulles, Catholic Social Teaching and American Legal Practice, 30 Fordham Urban L. J. 277, 287 (2002).  So, too, John Garvey, has written, “Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.” John H. Garvey & Amy V. Coney, Catholic Judges in Capital Cases, 81 Marq, L. Rev. 303, 343 (1998).  Of course, a legal regime may be so corrupt that a judge should undermine that regime by deciding cases contrary to the law.  “But it is hardly possible to make that claim about our own legal system.”  While it “has flaws,” viewed as a whole, “it is a decent and just institution that judges should take care to preserve.” Id. at 343.  Similarly,  if “the existing law is truly contrary to the conscientious convictions of the judge, the judge may have to recuse herself rather than cooperate in a morally evil action.” Cardinal Dulles, 30 Fordham Urban L. J. at 288.   

Dean Garvey has undertaken a detailed analysis of the recusal question in the context of capital punishment, concluding that faithful Catholic judges may not sentence individuals to death, but may preside over the guilt phase of a capital trial, affirm a death sentence on appeal, and refuse to disturb a death sentence on collateral review. Garvey & Coney, 81 Marq. L. Rev. at 306, 329.  Garvey explains  that an appellate judge, unlike the sentencing judge, can rightly say that “he does not intentionally direct or promote the defendant’s execution,” but instead simply that “the trial court did its job,” and that the “responsibility for life and death lies somewhere else.” Id. at 327-28.  He adds that it “would be unwise from the point of view of death row inmates to leave the interpretation of the constitution to death-qualified judges.” Id. at 330.
       
Whatever the meris of the particular line drawn by Dean Garvey, it is important to realize that all judicial acts are not the same.  Simply because a faithful Catholic judge may not order that an abortion take place does not mean that a faithful Catholic judge may not determine to whom the law allocates the responsibility for making decisions regarding abortion.  This is perhaps easiest to see in the context of a the legal decision regarding the scope of national power: Surely a faithful Catholic judge could decide whether the constitution empowers the national government, as opposed to the states, to regulate abortion.  May a faithful Catholic judge ever decide that the law allocates the responsibility for making decisions regarding abortion to the mother?  I think that the answer has to be yes.  Suppose Roe and Casey were overruled, and a particular state legislature decided not to limit in any way certain early abortions. If a case were nonetheless brought seeking to block such an abortion, surely a faithful Catholic judge could decide that there was no law authorizing the bringing of such a legal claim.  As Justice Scalia has noted, “States may, if they wish, permit abortion-on-demand.” Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Scalia, J., dissenting).

The public in general, and litigants in particular, are entitled to have judges who will decide cases in accordance with the law rather than in accordance with their own moral or religious convictions.  The law requires disqualification if a judge “has a personal bias” or if “his impartiality might reasonably be questioned.” 28 U.S.C. § 455.  If a judge knows that his religious convictions permit him to reach only one possible result in the case, he should disqualify himself.  If, regardless of the law, a judge’s moral convictions require that he can only decide a case one way, he cannot decide the case at all. See Garvey & Coney,  81 Marq, L. Rev. at 334 (stating that a judge who cannot give the judgment which the law requires must recuse); id. at 339 (stating that a judge who cannot consider the possibility of imposing a death sentence should recuse from conducting a sentencing hearing in a capital case).

An abortion clinic once unsuccessfully sought the disqualification of Judge Noonan from a case, contending that his “fervently-held religious beliefs would compromise [his] ability to apply the law.” Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995).  He denied the motion, evidently confident that he could decide the case in accordance with the law.  For if his religious convictions had precluded him from deciding the case in accordance with the law, he would have been obligated to disqualify himself.  We can be sure that if the Church takes the position that a faithful Catholic judge must either decide a case in accordance with his religious convictions or recuse himself, there will be many more recusal motions targeted at Catholic judges.  The unfortunate result could be the stilling of judicial voices such as that of Judge Noonan, who wrote eloquently about the constitutionality of a law prohibiting the promotion of suicide. Compassion in Dying v. State of Washington, 49 F.3d 586 (9th Cir. 1995).   And I do not think that it will do (although some might find it tempting) for a judge to decide the legal merits of the case and then recuse only if, in his view, the law calls for a decision at variance with his religious convictions, but stay in the case if his legal view coincides with his religious convictions: The point of disqualification is to prevent improper influences on the legal decision in the first place.  Indeed, Judge Noonan closed his opinion by emphasizing that the ”compass of a federal judge . . . is the Constitution of the United States.” 49 F.3d at 594.

For faithful Catholic judges (particularly inferior federal judges who believe that Roe was wrongly decided), it must be extraordinarily painful to decide a case involving abortion.  Indeed, recusal might well be a personal relief.  But abandoning the field to those without religious objections to abortion is hardly well calculated to make the law more sensitive to the sanctity of life.   And if it is never morally permissible for a faithful Catholic judge to decide cases in accordance with Roe and Casey, then faithful Catholic judges may well have no role in deciding the constitutional status of abortion.   If Justice Kennedy is required to recuse himself in abortion cases, it seems to me that Justices Scalia and Thomas are too.  Put bluntly, if as a matter of Catholic morality, faithful Catholic judges can never decide cases in accordance with Roe and Casey, then, as a matter of law, I don't think that they can participate in cases that limit or overrule Roe and Casey either.

I would be happy to receive comments, corrections, criticisms, and suggested readings -- including general works to help me understand better the workings of the distinction between formal and material cooperation.