Thanks to Rob for his as-per-usual thoughtful response to my invitation that we discuss Sen. Obama's recent statement about the role and work of courts. After incorporating by reference the disclaimers and "givens" in my own post on the subject . . . a few thoughts:
Rob quoted Sen. Obama's earlier statement that, in about 5% of cases, “you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be,” Obama said, adding that justices should understand what it’s like to be gay, poor or black as well. I'm not sure, but I'm inclined to disagree. Now, we all know that, in fact, judges are not and cannot be robots or automatons. Still, it seems to me that we should want judges to understand their role as one that calls on them to try not to consult their "broader vision of what America should be", but should instead understand it to be the role of politically accountable actors to engage in such consultation. (Again, no one really thinks, and therefore I don't, that judges' worldviews and experiences don't shape, at all, their enterprise of identifying the law's binding content and applying it.)
Rob and I agree that "the notion that any judge should subvert the rule of law in order to establish a particular substantive vision of justice is problematic." My own reading of Sen. Obama's statements during the confirmation processes involving Chief Justice Roberts and Justice Alito make me think that, in fact, he does believe that the merits of a judge's work are closely tied to the whether the substantive outcomes in the judge's cases accord with Sen. Obama's "particular substantive vision of justice". (See, e.g., this statement, explaining his vote against Justice Alito.) (And, there's the fact that, for Sen. Obama, a judge's commitment to standing for social justice is one that will also lead him or her to maximally protect abortion rights.) Now, to be clear, I have no doubt that some "conservative" Justices, commentators, politicians, and law professors make this same mistake. My point here is -- it really is -- less a partisan, "Obama v. McCain" one than a broader one about what we think the role and vocation of a judge does and should involve. It seems to me that, in a democracy governed by a written Constitution, a federal appellate judge ought to try, to the extent she can, not to ask "what it is like" to be _____. And, it seems to me that this way of thinking about such judges' work and role is most consistent with Catholics' rule-of-law and justice commitments. Thoughts?
I'm probably not the best person to defend Barack Obama's view of judges, since I'm also troubled by various comments he's made over the last few months, but maybe his view is not as egregious as it seems. We can't forget that President Bush's best defense of Harriet Miers' qualification for the Supreme Court was his knowledge of her "heart." (OK, given how that episode turned out, maybe that's a bad example.)
Obama has suggested that, in his view, 95% of Supreme Court cases can be decided strictly by intellect, but 5% require us to look into a justice's heart, to "their broader vision of what America should be." Is this notion all that controversial anymore? Take the jurisprudence of Clarence Thomas, for example. It seems obvious that his experience as an African American shapes his view of affirmative action and school desegregation cases, and he gives voice to those views in a way that appears to defy the boundaries of the sterile "umpire" role espoused by Chief Justice Roberts. Is it wrong for Justice Thomas to do so? Is it even possible for him (and other judges) not to see their cases through the lenses of their own life experiences?
To be sure, the notion that any judge should subvert the rule of law in order to establish a particular substantive vision of justice is problematic. But I don't think Obama's comments justify a conclusion that he stands for that extreme position. Read most charitably, perhaps he's just bringing the inescapable human dimension of judging to the surface of our political discourse. Should Catholic legal theorists resist that acknowledgment? After all, if we could create nine robots who were programmed to apply a textualist theory of constitutional interpretation, we'd have to come to grips with rolling back not only Griswold and Roe, but also Brown, Meyer and Pierce, for example. Don't all of these cases require judges to stand up for "social justice?" Isn't a significant part of the judicial battle about what "social justice" entails?
Put simply, do we disagree with Obama because he is wrong, or because he is airing a truth that we don't like to acknowledge?
Damon Linker, of "Theocons" fame, argues in this New Republic book review that, among other things, "the political ascendancy of the religious right has been bad for the United States". The book under reivew, Charles Marsh's Wayward Christian Soldiers, contends, among other things, that "the politicization of Christianity in recent years--using the good name and moral commandments of the church to 'serve national ambitions, strengthen middle-class values, and justify war'--has been spiritually disastrous for evangelicalism in the United States."
In Linker's view, though, Marsh goes too far, and sets the bar for Christians too high. He concludes:
Certain kinds of believers will accept with composure the compromises and the imperfections of political life. They will not be discouraged, but at once chastened and emboldened by the knowledge that on this side of eternity our saints will not be statesmen and our statesmen will not be saints. Yet others will respond differently to the tragic conflicts at the core of the human condition. With their gaze transfixed by a vision of a more perfect world, they will be tempted to turn their backs on the realm of the profane and its merely human pursuits, including politics. We should be grateful to Charles Marsh for reminding us of the nobility of the true believers. And yet those of us who do not share their faith cannot help but wonder about the moral status of their impulse to secede from the often mundane duties and responsibilities of political citizenship, all the while scolding those who freely take on those duties and responsibilities. When does the fixation on one's own purity lapse into self-indulgence? This is a question for which Marsh has amply prepared us, but to which he has not even begun to supply an answer.
Responding to Sen. McCain's recent speech on judges and the Constitution, Sen. Obama issued the following statement:
The Straight Talk Express took another sharp right turn today as John McCain promised his conservative base four more years of out-of-touch judges that would threaten a woman's right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people. Barack Obama has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.
Let's put aside, for now, the claim that Sen. McCain promised judges who would "trample the rights and interests of the American people." What about the suggestion that "our courts should stand up for social and economic justice"? Should they really? What does this mean? What do / should we think about this suggestion? Discuss! [Disclosure: I am a member of Sen. McCain's "Justice Advisory Committee".]
Update: Bainbridge weighs in. Other thoughts? Let's even put aside the question, about which we all know we here at MOJ disagree, about whether, on balance, Sen. Obama or Sen. McCain is the better choice for President. And, let's take it as given -- as we should -- that we all, despite our disagreements, believe that politics should aim at achieving and protecting "social and economic justice". What do we think about the proposal that "courts should stand up for social and economic justice"?
Tuesday, May 6, 2008
Voter ID laws, the Notre Dame edition:
Sister Julie McGuire said she was forced to turn away her fellow
sisters at Saint Mary's Convent in South Bend, across the street from
the University of Notre Dame, because they had been told earlier that
they would need such an ID to vote.
The nuns, all in their 80s or 90s, didn't get one but came to the precinct anyway. "One came down this morning, and she was 98, and she said, 'I don't
want to go do that,'" Sister McGuire said. Some showed up with outdated
passports. None of them drives.
Michael posted the response of my friend and colleague, Teresa Collett, to Doug Kmiec's discussion of his endorsement of Senator Obama. Although I do not necessarily share Teresa's views on the extent of power a President can exercise over abortion, I concede that there is a large range of possible views on that issue. But that is not what I want to focus on.
What prompts my response is the last several lines of Teresa's post. She quotes the statement of the United States Bishops that a vote by a Catholic for a candidate taking a position in favor of abortion, if the voter's intent is to support that position, would make a Catholic guilty of cooperation in grave evil. She then concludes, "I fail to see adequate counterveiling moral considerations that would suggest that a vote for Senator Obama is anything other than a vote for continued judicial protection of abortion."
If Teresa is merely conveying her own consideration of the candidates, a consideration that leads her to conclude that she can not find sufficient counterveiling considerations that would allow her to cast a vote for Obama notwithstanding his position on abortion, I have no quarrel with her. If, however, she intends to express by her comment that anyone voting for Obama must be doing so with the intent of supporting continued judicial protection of abortion, I take great exception to that conclusion.
The statement of the Bishop's cited by Teresa also makes clear that "a voter should not use a candidate's opposition to an intrinsic evil to justify indifference or inattentiveness to other important moral issues involving human life and dignity." As various discussion lines on this blog have suggested, there are a number of other issues involving human life and dignity that are important to consider as we reflect who we should elect as President. I accept that people will come to different conclusions about whether those issues are sufficiently "morally grave" to allow "a Catholic who rejects a candidates's unacceptable position [to] decide to vote for that candidate" (again quoting the Bishop's statement). I, however, do not accept any suggestion that a good Catholic cannot come to the conclusion that he or she can vote for Obama in good conscience and I do not read the Bishop's statement as conveying that conclusion. Rather, I believe there are sufficient counterveiling considerations tht would allow someone to decide to vote for Obama despite (and without intending to support) Obama's position on abortion.
Here. He writes:
It would have required a lot of prescience to predict in 1965 that American politics, for so many decades based on economic divisions, would soon split over social issues and, especially, abortion. But not even a very prescient observer could have correctly predicted which party would take which side in the coming battles. On abortion, in particular, it looked obvious which way it would break: The Democrats were the party of Catholic Northerners and Southern whites, the party that believed in using the power of government to protect the weak; the Republicans were the party with historical ties to Planned Parenthood. . . .
It's an interesting story. (Nutshell version: Fred Dutton pushed out the old "party bosses", who were replaced by "Social Change activists".)
In light of Eduardo's post the other day -- on Frank Rich and the "double standard" he thinks is being applied to Jeremiah Wright and John Hagee -- this piece, "Meeting John Hagee", might be relevant. (I've been very critical of Hagee, and of politicians who cozy up to him, so the piece was informative for me, too.)
For what it's worth, I am quite sure that Sen. Obama does not share Rev. Wright's loopy and offensive views. I am equally sure that Sen. McCain does not agree with (or care much about) John Hagee's understanding of Revelation or his (unremarkable, given the source) views of the Roman Catholic Church.
Much more worrisome (to me) than Sen. Obama's (I assume) strategic relationship with Rev. Wright's church is his staunch support for the Freedom of Choice Act -- he said his "first act" as President would be to push for it -- and his apparent unwillingness, so far, to even endorse the Democrats for Life-supported "95-10" initiative. There's much that is appealing about Sen. Obama -- I understand why so many political liberals like him -- but, when it comes to abortion, he's a garden-variety, down-the-line NARAL guy. The FOCA would, remember, among other things, undo the partial-birth-abortion ban and other regulations of abortion, require public funding of abortions, and nullify conscience-clause protections. This latter effect of the Act, in particular, seems inconsistent with Sen. Obama's professed belief -- a belief that is, apparently, quite important to my friend Doug Kmiec -- that it is wrong to "tamp down the moral dimension to abortion".
