O'Brien and Judges' Obligations Revisited (II)

I'm going to renew my friendly debate with Rick over the "obligations of a Catholic judge" issue, this time in response to his criticism of the David O'Brien piece.  I agree with Rick that the claim that recognizing the constitutional limits on federal power is "at odds with important elements of Catholic social teaching" is a stretch; among other things, there are important considerations of subsidiarity on the side of limiting the feds.  I also agree with Rick that there are federalism limits in the Constitution that are more than just nominal.

But I don't agree that it's enough to argue, as Rick does, that the existence of federalism limits in the Constitution is just "a fact" and therefore a judge who enforces them can't face any conflict with Catholic social teaching.  The judge is not just recognizing the existence of those limits as a fact; as I've stressed before, s/he is also implementing those limits and enforcing them on a legislature, stopping the legislature from pursuing (let's assume now) some moral good (or even moral necessity).  The question is not whether the constitutional limits exist, but whether the (Catholic) judge should get involved in enforcing them.  To turn to the hoary (but I think conceptually relevant) example, a Nazi judge could not enforce anti-Semitic laws or "kill the disabled" laws and defend himself morally by saying he was just recognizing the "fact" of the laws' existence.

The differences from the Nazi, of course, are:

(1) Anti-Semitism and killing the disabled are fundamental wrongs, which makes such laws morally invalid altogether, while limits on federal power are not a fundamental wrong (though they may well lead to bad moral results in some cases).  But then that's the issue:  are the constitutional limits on federal power to address economic and social needs "at odds with Catholic social teaching"?  I agree with Rick that to answer that question "yes" in general is a stretch.  But the issue is not just the "fact" that the limits exist.  I still think that that's too positivist a position to reflect Catholic moral theory as I understand it.

(2) The Nazi legal system had such pervasive moral flaws that no Catholic (perhaps no moral person) could participate in it at all, while a Catholic judge may and should participate in the decent, if imperfect, American moral system rather than resign (and deny the nation the service of decent Catholic lawyers) over a conflict on one specific issue.  That raises again the question whether the judge has available the intermediate position of recusing in the specific case but staying on the bench.  I agree that if the only alternative is resignation, then imposing the morally bad (but constitutionally required) rule looks more justifiable.  But if resignation is the only alternative, and the argument is "stay in there and impose the bad rule rather than resign, because the system is generally good," that argument has implications for, say, the abortion issue.  Under the "stay in there" argument, if Justice Kennedy or some other Catholic justice concludes in good conscience (even if erroneously) that the Constitution or stare decisis require the abortion right, then isn't the justice within moral bounds to say "I will enforce this right rather than resign from the bench and refuse to participate in a generally decent judicial system"?  Shouldn't an ABA member angered by the association's embrace of abortion rights stay as a member, rather than resign, because of the other good things that the organization does?  I still am concerned that if conservative judges receive some moral leeway because of the value of having their contribution on other issues, then more liberal judges should get such leeway too.

Tom B.