Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, September 8, 2005

Assigning newborn children to parents

By Michael Scaperlanda

My colleague, Mary Sue Backus, brought the following conference, sponsored by William and Mary's Institute of Bill of Rights Law, to my attention:

Task Force Roundtable:  Reforming Parentage Laws, Sept 30-Oct. 1

The brochure describes the roundtable:  "What would be an ideal set of rules for assigning newborn children to parents?  Participants in this conference will propose and defend statutory rules for state formation of legal parent-child relationships that they believe would serve the children's welfare better than exisitng rules for maternity and paternity, bringing to bear on this issue social science research on the consequences for children of particular characteristics and circumstances."

The assumption underlying this rountable seems to be that nature and nature's god are incapable of assigning newborn children to parents and that the state, relying on the "experts," must fill the void and enter the field of issuing parenting licenses. 

Michael S.

The Rehnquist funeral

By Rick Garnett

Today, I attended the funeral service for Chief Justice Rehnquist.  The services for the Chief -- a Lutheran -- were held in St. Matthew's Cathedral, in Washington, D.C.  It was a beautiful event.  Justice O'Connor and President Bush shared nice, appropriate reflections, and the Chief's grand-daughter, son, and one of his daughers were extremely moving.  I was, I admit, envious of our Lutheran friends for their music:  No "On Eagles' Wings" or "Gather Us In," but "For all the Saints," "Amazing Grace", and "Faith of our Fathers."  (See correction below) 

I learned a lot about the Chief at the funeral.  He never (around me, anyway) wore his faith on his sleeve, but it was clear from things that his family and his pastor said that he was a man of serious, thoughtful faith, with a deep -- and very Lutheran -- confidence in God's grace.

Before the funeral, I was able to keep vigil by the Chief's casket, with my co-clerks, in the Court's great hall, while visitors and mourners  came through to pay their respects.  It was striking, to me, how few of the visitors were people of the "kind" I expected to see -- i.e., D.C. lawyers in charcoal grey suits.  All kinds of people -- tourists, cab drivers, barristas, maintenance workers, and Senators -- passed in front of the casket, often stopping to cross themselves.  Some of the Court police and building staff, whom I knew from a decade ago, talked with me about how much the Chief meant to them, and how much he had done for them.

It was, in a way, a happy (though sad) event.  A celebration of a live lived fully and well.

One theme came up, again and again:  The Chief Justice worried often that too many lawyers did a bad job of finding balance in their lives, and that they were unhappy because they did not remember that their families and loved ones were the most important things.  Good advice for law students.

Rick

CORRECTION:  I was reminded by a friend and former Rehnquist clerk that, of course, "Faith of our Fathers" is a Catholic hymn, "written by Frederic Faber, a former Anglican minister who had converted to Roman Catholicism."  Here is the original third stanza:

Faith of our fathers, Mary's prayers
Shall win our country back to Thee;
And through the truth that comes from God,
England shall then indeed be free.

No wonder I enjoyed singing it so much!

Wednesday, September 7, 2005

Mission-driven law school courses

By Rob Vischer

At St. Thomas, we are exploring the possibility of adding a course to familiarize first-year students with the basic tenets of Catholic social thought as applied to the lawyer's role.  To the extent that co-bloggers and readers have taught or taken similar mission-driven courses -- whether the course was explicitly grounded in Catholic social thought or not -- I'd love to hear about your experience.

Rob 

Same-Sex Marriage in California

By Susan Stabile

The New York Times reports today that the California legislature yesterday passed a bill amending the state's family code to define marriage as bewteen "two persons" rather than as between a man and a woman.  Governor Schwarzenegger has not publicly taken a position on the act, but one spokesperson has indicated that he the matter as one that should be settled by the courts, rather then the legislature.  The legislative action comes despite the overwhelming vote of Californias voters in 2000 in favor of Proposition 22, which defined marriage as between a man and a woman.

Tamanaha on Recusal in Abortion Cases

By Rob Vischer

Over at Balkinization, Brian Tamanaha has weighed in on the debate over judges recusing themselves in abortion cases.  An excerpt:

If these judges were remaining true to their opposition to abortion--if they acted with the courage of their convictions--it would seem that [they should] hear the cases and deny all applications. This would directly prevent abortions (at least for those minors who do not thereafter go to their parents for permission). Of course, some truly desperate minors who cannot confide in their parents might seek high risk (dangerous) abortions from unlicensed practioners who will ignore the consent requirements. But by taking [this] option in many cases the judge will have effectively prevented abortions. Judges against abortion can be even more effective in preventing them if they delay purposefully in issuing their denials long enough to make it difficult for the minor to seek out other alternatives. This . . . option is underhanded and repulsive, to be sure, but it would prevent abortions--so the higher moral end justifies the means.

. . . . [F]rom the standpoint of their opposition to abortion, judges who recuse themselves are not preventing any. What they are doing is keeping their hands clean while making someone else, a fellow judge, accept responsibility for deciding the case. After all, no judge wants to hear these cases, all of which have an unavoidably tragic element--these minors are the most vulnerable people in society in the most difficult situation imaginable. Adding to the burden they impose on other judges, the judges who recuse themselves expose their fellow judges to reprisal--to an increased risk of losing their judicial position in the next election--for stepping up to do the job the conscientious objector judge was unwilling to do.

The recusal option, when viewed in this way, seems neither consistent with their moral opposition to abortion nor with their institutional obligation to their colleagues, nor with their duty to apply the law. Moreover, if judges begin to recuse themselves partly out of opposition to abortion and partly out of fear of the possible reprisal at the next election (such mixed motives would be normal), the moral standing of recusal becomes shakier.

When you consider further that this practice opens a back door way to defeat the law--to eliminate the legal right of minors to obtain an abortion in situations where they do not want to seek parental consent--the recusal decision appears even more dubious.

Of course, these judges would (and should) recoil at the suggestion that they take the cases and uniformly deny requests. That course of action . . . would violate their oath to apply the law in an unbiased fashion, and would not be fair to the applicants. But, as Professor Koniak pointed out, by recusing themselves they have already taken a step down this path.

All things considered, a judge who cannot in good conscience apply the law fairly--who cannot do the job they have sworn to do--would seem to have only one option: resign.

Rob

Tuesday, September 6, 2005

Subsidiarity and Katrina

By Rob Vischer

Over at Evangelical Outpost, Joe Carter views the Katrina tragedy through the lens of subsidiarity, asserting that the tools for an effective pre-hurricane evacuation were within the grasp of local officials, who instead simply pointed their fingers at the federal government.  But conservative advocates of subsidiarity do not escape blame, according to Carter, as they fail to live out the doctrine they espouse:

Principles such as subsidiarity, federalism, and limited government are often considered cornerstones of conservative political thought. But when it comes to their actual implementation they are merely given lip-service. While aspiring young politicos sing the praises of states-rights, they prefer to do so on Capital Hill or in D.C. think tanks rather than in the choirs of their state legislatures or local governments. The very idea that our most competent conservative statesmen should be working in their actual states rather than in Washington is considered ludicrous. After all, everyone knows that state and local governments are reserved for the also-rans and has-beens rather than for the able and ambitious. Any job in FEMA, for instance, is considered superior to working in the New Orleans’s Office of Emergency Preparedness.

But mayor’s offices, city councils, and state legislatures all join the “little platoons” that serve as our first line of defense when natural or man-made disasters strike. So why then are we not working to put our best and brightest into these offices? Why do push them to take jobs as Senatorial aides rather than as state senators? Why do we lead them to roles as assistants to assistant directors in the Department of Education rather than as leaders on county school boards? Why do we put our rhetoric behind the local and yet but our faith in the federal?

If we expect to be taken seriously, conservatives must start supporting the principles we claim we believe. One way that we could begin is by “subsidizing” subsidiarity, by using our resources to promote our intellectual and political leaders at the state and local levels of governance.

In the case of Katrina, I think there's plenty of blame to go around at both the local and federal levels.  I do agree with Carter, though, that conservatives often invoke subsidiarity without acknowledging its full import, an argument I've made elsewhere.  (This is not to excuse liberals, who tend to ignore subsidiarity completely.)

Rob

Judge's Recusal from Abortion Cases

By Susan Stabile

I received the following response from Professor Gerry Whyte of Trinity College Dublin School of Law to my post regarding judges opting out of abortion cases:

"Further to your recent MOJ posting about judges recusing themselves from abortion cases involving minors, it strikes me that the rules of natural justice, and in particular the proscription against acting in one's own case, might be relevant to some (though perhaps not all) of these cases. If, as a result of extra-judicial activity, a judge acquires a reputation for being partisan on an issue, whenever that issue comes before her, she is surely obliged to recuse herself. That is certainly the legal position here in Ireland where in Dublin Well Woman Centre Ltd. v. Ireland [1995] Irish Law Reports Monthly 408, our Supreme Court held that a trial judge should have recused herself from a case involving abortion policy where, through her actions as Chairperson of the Commission on the Status of Women, she had previously indicated support for some liberalisation of our abortion laws. According to the Supreme Court, there was a perceived risk that one of the parties to the case could reasonably consider that the chance of a fair and independent hearing did not exist because of the trial judge's known views. There was never any suggestion, however, that the trial judge should resign from office. The focus here is on the rights of the litigants, rather than on the conscience of the trial judge, so recusal from one case is sufficient to resolve this issue."

Monday, September 5, 2005

Rick Garnett on William Rehnquist

By Michael Perry

[I thought that this piece by Rick deserved more than a link.  Posted yesterday on Slate.]

Tennis and Top Buttons
Remembering William H. Rehnquist.
By Richard W. Garnett
Posted  Sunday, Sept. 4, 2005, at 12:25 PM PT

I wrote a book report in high school on The Brethren, the Bob Woodward and Scott Armstrong "behind the scenes" takedown (or send-up) of the early Burger Court. The justices struck me, I have to admit, as a dysfunctional and petty bunch, but I remember thinking that one of them seemed pretty "cool." The youngest justice, Bill Rehnquist, apparently went in for practical jokes, ping-pong in the basement, swashbuckling dissents, and shaggy hair. I am embarrassed to admit that the thought actually occurred to me, "It would be fun to be one of these 'law clerks' for him."

About 10 years later, I showed up at the court for my clerkship interview with the chief, sweating horribly from the combined effects of Washington, D.C.'s June humidity and my one wool lawyer suit. I can only imagine how obviously disheveled, in both appearance and mind, I seemed to his assistants, Janet and Laverne, as I waited. Right on time, the chief came into the waiting room, in casual clothes, shook my hand, and said, "Hi, I'm Bill Rehnquist."

He showed me around his chambers and the court's conference room. We had a friendly conversation about obscure Arizona mining towns, our respective hitchhiking experiences, the death penalty, and my childhood in Anchorage, Alaska. Thinking back to The Brethren, I asked him about pranks he'd played on Chief Justice Burger. When he asked me if I had any questions, I said—thinking it would be my only chance—that I would appreciate seeing the justices' basketball court, "the Highest Court in the Land." At the end of the interview, when the chief remarked that he'd never had a clerk from Alaska before, I started to get my hopes up.

During my clerkship year, the chief, my co-clerks, and I played tennis together weekly at a public, outdoor court near Capitol Hill. (We played on the same day that the week's "cert memos," analyzing petitions filed by those seeking review of their cases, were due, so—more than a few times—clerks played without having slept.) We took turns driving and buying a new can of balls. I was the chief's doubles partner that year, and I several times beaned him with my hopelessly chaotic serves. One day, I am ashamed to admit, after yet another double-fault, I slammed my racket to the ground and yelled an extremely unattractive expletive. My co-clerks looked across the net at me in horror. The chief, though, didn't turn around. He just slowly bent over, put his hands on his knees, and started laughing.

For me, maybe the best part of the job was the daily 9:30 a.m. meeting. We'd drink our coffee, talk a bit about football, movies, and weather, and check up on pending cases and opinions. Sometimes he'd wonder aloud why one colleague or another still hadn't circulated a draft. (He was always, though, unfailingly fair and genial about and toward his colleagues; he would never have tolerated from any clerk a snide remark about a justice.)

In keeping with his days as a sideburn-and-psychedelic-tie-wearing junior justice (though not with his expectations of lawyers who appeared before the court!), the chief didn't impose on his clerks the standard law-firm-ready attire rules. He did, however, have a problem with T-shirts showing under our shirts. So, whenever my co-clerks and I had a meeting, we'd quickly button up our top buttons. I sometimes forgot to hide the offending undergarment, though, and one day, in the middle of a conversation about a pending case, he looked at me, sighed, and wondered why even his "extremely lax" dress code was proving such a burden.

We had cheeseburgers and beer ("Miller's Lite," he called it) together regularly, and he allowed himself one cigarette with lunch. He invited us to his home for dinner and charades; I don't think I'll ever forget watching the chief act out Saving Private Ryan, crawling around under his coffee table, pointing his fingers like a gun, and mouthing "pow, pow!"

Chief Justice Rehnquist liked to put together friendly brackets and pools for the NCAA tournament, the Kentucky Derby, and the bowl games. One day, just after the 1996 election, he passed down to me a note from the bench. I assumed he wanted a law book or a memo, but instead he asked me to find out what was happening in one of the not-yet-called House races that was integral to our inter-chambers contest.

The chief's chambers ran like clockwork. We had a routine, and it worked well. He knew his job, and he knew he was good at it. He knew a staggering amount of law and was scarily quick at seeing and getting to the heart of any question. To prepare for oral arguments, the chief preferred not to read long, heavily footnoted memos, opting instead for talking through problems with his clerks, while walking around the block outside the Supreme Court building—sometimes twice, for a particularly tricky case. It was surprising, and always funny, that so few of the gawking tourists around the court recognized the chief justice as he ambled around Capitol Hill, doing his work. (He didn't mind at all).

A few years ago, lured by the promise of great seats for the Michigan game (the Fighting Irish won, though the chief thought they "won ugly"), the chief justice visited Notre Dame and—after a game of doubles with me and two colleagues—spent an hour with my First Amendment class. The conversation quickly turned to advice about life and lawyering, balancing work and family, being a good parent, making a difference, and contributing to our communities. It meant a lot, to me and to my students, that he clearly cared more about helping these students find happiness in the law than about selling them on his legal opinions.

The chief was a lawyer's lawyer. He taught and inspired me, and all of his clerks, to read carefully, to write clearly, and to think hard. He will, quite appropriately, be remembered as one of the few great chief justices. For me, though, William Rehnquist is more than a historic figure and a former boss. Today, thanks in no small part to him, I have a great job: I get paid to think, research, and write about things that matter and to teach friendly and engaged students about the law. I will always be grateful. And I hope that the deluge of political spin to come will not drown out what Americans should remember about the chief: He was a dedicated public servant, committed to the rule of law and to the court. He regarded himself as the bearer of a great trust and of a heavy obligation of stewardship. In my judgment, he was faithful to that trust, and he fulfilled that obligation.

Judges and Consent Cases

By Robert John Araujo, SJ

Thanks to Susan for her posting yesterday about the NYT article on the Tennessee judges who are recusing themselves in cases where the minor elects not to ask a parent for permission to obtain an abortion. It appears that the minor for one reason or another chooses not to seek parental permission. Her option is to ask a judge. What if the judge accepts the case but denies permission? Will the twelve experts who wrote to the State Supreme Court complaining about Judge McCarroll’s “lawless” actions be satisfied? Will Mr. Chase, the president of Memphis Regional Planned Parenthood then have a motive to evaluate judicial activities? Recalling Prof. Silverstein’s research on how parental consent laws operate, is the judge who decides the case in accordance with the law but denies permission still lawless? I wonder if those who advocate abortion “rights” for minor children will be satisfied with laws under which judges, acting under the State law, withhold permission for abortions? Is the only “lawful” result the type of decision that Judge Bailey renders? These are interesting and important issues that warrant careful and continuing study.  RJA sj

Sunday, September 4, 2005

Judges Opting Out of Abortion Cases

By Susan Stabile

Today's New York Times contained an article reporting that some judges in states that require parental permission for abortion with an option to seek judicial permission not to tell a parent have begun to recuse themselves from such cases based on their belief that taking innocent life is immoral.  The article cites a number of criticism of the decision and I'd be grateful to hear people's views on the question. 

On the one hand, I think the analogy made in the article to phramacists' refusal to dispense emergency contraception drugs is misplaced.  In my view, there is a difference between a pharmacist's refusal and that of a judge, who takes an oath to uphold the law.

On the other hand, although I don't disagree that "[u]nwillingness to follow the law is not a legitimate ground for recusal," if what the judge is saying is: "I do not believe I could be impartial here because of my moral views of the issue," then is recusal really inappropriate?  If the judge is raising question about his ability to be impartial, is it the case, as Prof. Koniak is quoted as saying, that the judge's only choice is to enforce the law or resign from the bench?  Some views from the legal ethicists out there would be welcome.

The article expresses the concern that this action could "spread across the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce."  That is a good reminder that whatever views we form on this question ought to be views based on broader questions of separation of powers and not based on solely on the issue of abortion. 

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