Mirror of Justice

Since my last posting of a few days ago, I have identified two more important issues for CLT consideration during this election season. They are: (1) judicial selection, and (2) religious freedom.

Whoever is elected to the presidency will have a major impact on the nomination of all federal judges, including but not limited to Supreme Court candidates, for the next four and possibly the next eight years. So, what is at stake is not simply who will decide the cases finally, not because they are supreme but because they sit on the Supreme Court, but also who will hear cases in Federal district courts and the Circuit Courts of Appeal as they work their way to the nation’s highest court. The impact of judicial decisions will last for years. A fundamental question for all voters, especially those concerned about the relation between faith and the public square, is this: what should the Federal judiciary look like in four years; in eight years; in ten years; in twenty years and beyond…? The same question can be asked in those States where governors nominate judicial candidates who undergo a confirmation process that resembles that in the Federal judicial system.

A colleague and follower of the Mirror of Justice, Professor Scott Fitzgibbon, has this to say about those who have the power to influence the selection of judges:

I limit my comments to the Supreme Court ... [But we cannot] … neglect to discuss the next President’s affect on nominations to the United States Courts of Appeals and United States District Courts.  A very small percentage of cases reach the Supreme Court and much that occurs in a trial court by way of findings of fact and rulings on motions is for practical purposes unreviewable… 

[Here Professor Fitzgibbons addresses three pressing issues with which Federal judges are addressing or will likely address]

First, the right to life of the unborn.  Senator McCain’s Supreme Court nominees would likely vote to uphold reasonable restrictions on abortion, such as those requiring parental consents, prohibiting late-term abortions, and protecting infants born alive despite attempts to abort them.  Senator Obama’s nominees would likely vote to strike down such provisions.  Senator Obama has identified the passage of a Freedom of Choice Act as a “top priority.”  Depending on how it is worded, such an act by express language or plausible interpretation would aim to strike down state laws which require parental consent and other such protections.  Senator Obama’s appointees would likely support such interpretations and would likely uphold the statute against constitutional objections based on federalism. [In this context we must remember the following:] Senator Obama – in his famous statement that one of his daughters, were she to become pregnant, should not be “punished with a baby” – could only have meant that in such as case she SHOULD have an abortion. He thus is (conditionally) in favor of aborting his own grandchild.

Second, the definition of marriage.  Senator Obama supports Civil Unions for same-sex couples and voted against the proposed constitutional amendment defining marriage as the union between one man and one woman.   I think it likely that he would regard same-sex couples as among the vulnerable people who ought to be protected by the judiciary.  It is therefore I think likely that his judicial nominees would in various ways support the recognition of same-sex marriage.  They might go so far as to hold that states must recognize it owing to the Equal Protection Clause or the Due Process Clause.  They might hold the Defense of Marriage Act to be unconstitutional, thus requiring at least the federal government to recognize same-sex marriage.  They might hold that the Full Faith and Credit Clause requires every state to recognize same-sex marriages entered into under the laws of

Massachusetts

and

California

.

Third, respect for the liberty of private individuals and associations to diverge from liberal mandates on the above subjects.  Numerous challenges are now being mounted in the lower federal courts and in state courts which contest the legality of a private organization’s refusing to place children for adoption  by homosexual couples, refusing to perform abortions, and the like.  In

Canada

, it has now become unlawful even to speak in opposition to same-sex relationships.  It is grounds for dismissal from the

Boston

public schools to speak along those lines.  We can expect many such initiatives to succeed under an Obama administration.  We can anticipate that President Obama’s judges would support such initiatives and themselves to craft some. 

The second issue that merits consideration today is religious freedom—the very thing that Pope Paul VI asked of civil leaders at the conclusion of the Second Vatican Council in December of 1965. Over the years several MOJ contributors have, in a variety of ways, talked about the urgency of this issue—religious freedom. It surely has an important bearing on the future of the law in the US, which will be affected by the upcoming election. I have been one of those contributors, and, in this context, have relied on the image of the pending “train wreck” from time to time when I have seen evidence that law making would lead to an attack on this important and fundamental liberty. In this context, I point to today’s Boston Globe which posted a series of letters-to-the-editor from readers outraged by the Archbishop of Boston’s admiration of Governor Palin’s younger son who has Down’s Syndrome. These letters offer some evidence that this great freedom once again is in peril. One such letter from Ann Connolly of Brookline states:

ALLEGED NAIVETE is no more endearing in a Boston cardinal than it is in an Alaska governor. By singling out Sarah Palin's youngest child (“Church pressing abortion fight,” Page A1, Oct. 6), Sean P. O'Malley made it clear that he thinks the Republicans have the monopoly on good parenting. His speech endorsed a partisan platform and the candidates who espouse it. The cardinal never mentioned the charming Obama children or the deserving Biden grandchildren, nor did he cite the policies of the Democratic Party that will ensure the continued education and health benefits for all children, especially those with special needs, and their families. If the cardinal chooses to continue with the policy of one issue, that opposition to abortion is the litmus test for the Catholic vote, a policy no longer promulgated even by Pope Benedict XVI, he must register as a lobbyist and eschew the tax exemption of the cloth. Otherwise, he must not play favorites. Favoritism is not Christian, and, from him, not legal. Martha Coakley, are you paying attention? [full letter HERE]

Apparently, Ms. Connolly is not troubled by those who identify themselves as Catholics but who have expressed different views or actually made endorsements of particular, i.e., Democratic, candidates in the upcoming election as the article to which she refers in her letter points out. [HERE] But she has made a public challenge to the Attorney General of the Commonwealth of Massachusetts, Martha Coakley [about whom I have previously written] to investigate these “improprieties” of Cardinal O’Malley. Apparently the statement of admiration by Cardinal O’Malley of a young child and his family is playing unlawful political favoritism in Ms. Connolly’s estimation; however, the actual political endorsements of two prominent Catholics of a Democratic presidential candidate are not. I have read and re-read the Globe article to which Ms. Connolly refers, and I cannot find the political favoritism that she has been able to identify. Ms. Connolly’s approach to electioneering and the law-making to which it will turn is not the stuff of which democracy is made. It finds its home in the totalitarian regime where religious freedom has been practiced in the face of peril posed by the state, the party, or the political thug who is not interested in robust debate and religious freedom essential to the survival of democracy. It is tragic that Ms. Connolly does not see the merit in hearing a variety of perspectives on important matters. Justice Harry Blackmun once wrote about the “chill wind” that he detected blowing against a “woman’s right to choose” in his dissent in Webster v. Reproductive Health Services (1989). Today a far more dangerous wind blows as a new darkness emerges on the horizon—a wind that foreshadows not a vigorous democracy but the return of the political brown shirt.

RJA sj