Justice Scalia may not be a "Catholic judge," but he is both a Catholic and a judge ... and that matters. I elaborate at my blog.
Tuesday, October 23, 2007
On Being a Catholic Judge
Torture as Technicality
I confess that I did not follow last week's confirmation hearings of Michael Mukasey to be attorney general. But I am disturbed at his evasiveness on the question whether waterboarding constitutes torture. David Luban comments:
Aren’t we tired of evasion? The legal formula "severe physical or mental pain or suffering" is NOT an arcane lawyer’s term of art. It’s not an old Latin phrase or a medieval term like "replevin" or "assumpsit". All the black arts of the Bush torture lawyers have been bent to one end: pretending that there is something arcane and complicated about the words "severe physical or mental pain or suffering." Something that only a brilliant lawyer with fancy credentials can figure out.
The fact is, there is no rich technical jurisprudence on the meaning of those words, and only scoundrels pretend that there is. The legal definition of torture is just twenty years old, and - to say the least - torture cases raising the issue of where to draw the boundary between "severe" and "not severe" aren’t popping up on the dockets of courts the world over like slip-and-fall cases. This isn’t a question for lawyers. This is a question of common sense. Let’s stop being ridiculous.
So: does waterboarding inflict severe suffering? If you want to do a quick, common-sense reality check, try this. Blow all the air out of your lungs. Then stare at your watch and try not to inhale for ninety seconds by the clock. Then take one quick half-breath and immediately do it again. Now imagine that you’re tied down while you’re doing it and water is pouring over your head and rolling up your nose. Or, if you’re really ambitious, get in the shower and turn it on and try the same hold-your-breath-with-no-air-in-your-lungs experiment with your head tilted up and the water pouring up your nose. Then decide for yourself whether it’s severe suffering.
Which is worse: having a President who obfuscates the clear meaning of terms in order to avoid accountability for personal moral failings, or having a President who does so in order to avoid accountability for morally flawed policy permitting the state's abuse of the human person? Whatever good the Bush Administration has done on certain issues of importance to human dignity, can anyone reasonably dispute that the lack of clarity and courage on the issue of torture is a black mark on its record?
The "anti-homosexual" Christian
Leading evangelical pollster The Barna Group has released a study showing that Christianity's reputation among young Americans is taking a serious hit, due in large part to its stance on homosexuality:
Interestingly, the study discovered a new image that has steadily grown in prominence over the last decade. Today, the most common perception is that present-day Christianity is "anti-homosexual." Overall, 91% of young non-Christians and 80% of young churchgoers say this phrase describes Christianity. As the research probed this perception, non-Christians and Christians explained that beyond their recognition that Christians oppose homosexuality, they believe that Christians show excessive contempt and unloving attitudes towards gays and lesbians. One of the most frequent criticisms of young Christians was that they believe the church has made homosexuality a "bigger sin" than anything else. Moreover, they claim that the church has not helped them apply the biblical teaching on homosexuality to their friendships with gays and lesbians.
A new blog
MOJ readers might be interested in this new blog: "The Immanent Frame" is run by the Social Science Research Council, and deals with "secularism, religion, and the public sphere." The first round of posts are focusing on Charles Taylor's new book, "A Secular Age."
Bobby Jindal's conversion
Bobby Jindal, a Roman Catholic Indian-American, was recently elected Louisiana's governor. This is, I think, a wonderful thing. Here, thanks to America magazine, is a reprint of an article he wrote in 1993 about his conversion to Catholicism.
Miller on Scalia and "Catholic" judges
Over at the First Things blog, Villanova law prof and MOJ-friend Robert Miller has this post, discussing Justice Scalia's lecture at Villanova and also my own post about that lecture, in which I suggested that Scalia, his protests to the contrary notwithstanding, really is a "Catholic judge." Here's some of what Miller has to say:
. . . Scalia’s conclusion: A person’s moral values are generally irrelevant to the interpretation of legal texts—even when those values are Catholic values.
If he were not a textualist and an originalist, if he thought he ought to rely on substantive moral notions not found in the text, then, Scalia said, his Catholic faith would make a large difference in how he judges cases. Similarly, if he had to judge common-law cases—cases that do not involve texts enacted by a legislature but only judge-made law, cases of the kind that sometimes come before state courts but rarely come before federal courts—things would likewise be different. In making common-law decisions, a judge has to make normative judgments about which laws are best, and so the judge’s values are properly in play. So, too, in the voting booth. Indeed, when the question switches from which laws we actually have to which laws we ought to have, then a person properly relies on moral values, whether they be Catholic or anything else.
Many Catholics, even ones who are fans of Scalia, might find this surprising, even unacceptable. In my view, however, it’s perfectly correct . . .
Responding to my suggestion that Justice Scalia, whether he likes it or not, is a "Catholic judge", Miller writes:
We can take any profession and point out that Catholics who engage in that profession have special reasons, based in Catholic teaching, to do their jobs well in accordance with the standards applicable to all who do such jobs. Nevertheless, we do not speak of “Catholic physicists” and much less of “Catholic third-basemen” or “Catholic real-estate agents” or “Catholic short-order cooks.”
And with good reason. A man may be a Catholic and a physicist, but this doesn’t make him a Catholic physicist. Some adjectives, when put into attributive position (“a heavy drinker”), combine with a substantive to yield a peculiar meaning (“some one who drinks a lot”) different from the mere conjunction of meanings of the adjective and the substantive (“heavy and a drinker”).
So it is, commonly, with the adjective Catholic. A Catholic theologian is not merely a Catholic who is also a theologian but a theologian who studies Catholic theology; and a Catholic writer is not merely a Catholic who is a writer but a writer who writes on Catholic themes. By parity of reasoning, a Catholic judge is not merely a Catholic who is a judge but someone who judges in a way different from other judges precisely because he is Catholic—and this is exactly what Scalia denies he does.
There is no peculiarly Catholic way of judging. And thus Justice Scalia is right when he says, “There is no such thing as a Catholic judge.”
Maybe so. Certainly, like Miller, I do not think that the Catholic faith does, or should, supply a Catholic-who-is-a-judge with the substantive content of her rulings. Still -- and I am entirely open to the possibility that I'm just being stubborn or sloppy -- I do not yet see why I need to agree that "a Catholic judge is not merely a Catholic who is a judge but someone who judges in a way different from other judges precisely because he is Catholic".
Sr. Helen and a "moratorium"
Thanks to Susan for the post about Sr. Helen Prejean's visit to St. Thomas. I read her "Dead Man Walking" when it came out, and also had dinner with her as a first-year law student. Although, over the years, I found myself disagreeing with some of what she said and did, I admire so much the way she managed to challenge us to respect the dignity, and hope for the redemption, even of those who do great evil, and also to remember the dignity of victims, and the pain of their families.
With respect to the "dignity of the human person" and the death penalty, it strikes me that there is this challenge, or tension: On the one hand, Catholic abolitionism has embraced this "dignity" as the basis for the death penalty's immorality. That is, Catholic abolitionists say that it is because of this "dignity" that it is wrong to execute even those who have committed horrible crimes. On the other hand, I believe that this commitment to human dignity also requires Catholics to be skeptical of punishment theories that talk of punishment only in consequentialist or therapeutic terms. If it is true that "human dignity" precludes execution, it is also true, it seems to me, that "human dignity" requires an appropriately retributive (i.e., desert-based) theory of punishment.
With respect to a moratorium, Susan says that if there is not a moratorium in effect, "there should be." I agree, but with the caveat that any such moratorium should be imposed by politically accountable actors.
Monday, October 22, 2007
Helen Prejean and the Death Penalty
The University of St. Thomas Law School community was today treated to a talk by Sr. Helen Prejean, of Dean Man Walking fame, who has spent the last 20 years walking with people on death row, and who gives about 140 talks a years around the country in an effort to foster public discussion of the death penalty.
S. Helen started by stressing the need to go beyond theoretical discussions of the death penalty and focus on the practicalties of how it is administered. What does it say, she wonders, that in 8 out of 10 cases where the death penalty is the punishment, the victims of the crimes in question are white? Or what does it say that 10 states in the South account for 80% of U.S. executions. (Texas alone accounts for about 40%.) Or that those sentenced to the death penalty are most likely poor? She also taked about innocent defendants, the subject of her new book, The Death of Innocents: An Eyewitness Account of Wrongful Executions. She laments, in this context, how difficult it is for particularly the poor to mount an effective defense and how difficult it is to succeed in a claim of ineffective assistance of counsel. None of these arguments are new, but that does not make them any less compelling.
Ultimately, however, she argues that death as a punishment is inconsistent with the dignity of the human person and criticizes politicians and others who push us to believe that the only way to honor the family of victims of heinous crimes is by killingl the perpetrator. She also suggests that in accepting the death penalty we not only harm the dignity of the defendant, but that we demean ourselves as well when we accept that the intentional killingn of another human being is not an act of cruelty. She also talks in her book about "the corrosive effects on the souls of those who carry out the killings."
Rick asks whether there is a death penalty moratorium in effect. If there is not, there should be.
Is there a death-penalty moratorium in effect?
Luban on legal ethics and human dignity
I'm a little late noticing, but I see, over at "Balkinization", that my legal-ethics teacher, David Luban, has a new book out, "Legal Ethics and Human Dignity." Here is his post, introducing the book. I'm really looking forward to reading it.
David was not only a caring and challenging teacher, he also introduced me, during my second year of law school, to the inspiring legal-ethics work of my current colleague, Tom Shaffer. And, thinking about Tom's work was the occasion for my own effort, a few years ago, to connect legal ethics with Catholic moral anthropology.
Any reviews of the Luban book from MOJ readers or bloggers?
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