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.

Friday, May 9, 2008

Vouchers, evidence, and ideology"

An excellent post -- with implications, I think, beyond the education-reform issue -- by Jay Greene, here.

Wednesday, May 7, 2008

Pictures of Hiroshima

Some new pictures of the aftermath of the bombing of Hiroshima are here.  (Warning:  The pictures are graphic and heart-rending.)  (HT:  Vox Nova).

Response to Rob

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?

"The Idolatry of America"

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.

Judges and justice

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

Ponnuru reviews "Why the Democrats are Blue"

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".)

More on Hagee, Wright, abortion, and Obama

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".

I love Catholic schools

Here's my daughter's second-grade class, just after their First Communion:

Does Science make belief in God obsolete?

A discussion.  (HT:  Andrew Sullivan).  Christoph Cardinal Schonborn -- one of the dozen or so contributors -- writes:

In all our scientistic "knowledge" of the inner workings of things, and our technology-based comforts and distractions, there seems to be no place for the still, small voice of God. In that practical and existential sense, science and technology seem to have pushed belief in God toward obsolescence. Or have they?

In our innermost being, we moderns remain unsatisfied. Sooner or later we face an existential crisis, and recognize in our lives something broken, disordered, in need of redemption. The fact that we can recognize disorder, brokenness, and sin means that they occur within a larger framework of order, beauty, and goodness, or else in principle we could not recognize them as such. Yet brokenness and disorder are painfully present, and the human soul by its nature seeks something more, a deeper happiness, a lasting good. Consideration of the order and beauty in nature can lead us to a Something, the "god of the philosophers," but consideration of our incompleteness leads us beyond, in search of a Someone who is the Good of us all. Science will never make that quest obsolete.

Friday, May 2, 2008

Defending my "groan"

Rob adds his thoughts, and thereby fills out the picture, of the Kent School District case.  He writes:  "[T]he legitimate pedagogical objectives of a high school are much different than a university.  A university is, or at least should be, a broad and vibrant marketplace of competing moral claims.  I'm not sure that model is appropriate for a high school."  I agree.  He asks, "[b]ut even if we disagree with the school's decision not to approve Truth given its exclusion of non-Christians from voting membership, do we really want to give Truth a constitutional right to demand that it be approved?"  Maybe not.  I did not say that we do.

My frustration was focused, and was directed at least as much at the District as at the Ninth Circuit:  Even if we factor in Rob's "official approval" point, my own claim is that it is not "discrimination" -- at least, it is not "discrimination" in the sense that gives normative heft to anti-"discrimination" laws -- for a Christian club to limit membership to Christians.   And, I see no reason -- even if we understand the mission of a high school in the way Rob suggests -- for a public high school in a liberal (properly understood) society to have any qualms about providing "equal access" (as the law requires) to "Christian" clubs that are for "Christians."  Such clubs are doing doing nothing wrong, nothing illiberal, nothing that they should be ashamed of, and nothing that a public school should worry about endorsing, when they construct their membership in accord with their identities.