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, May 8, 2008

A Post-Doc Opportunity

[In case some MOJ readers are interested:]

UNIVERSITY OF OXFORD

Faculty of Theology

Post-Doctoral Fellowship in Christian Ethics and Public Life

Grade 7, £26,666 p.a.

Applications are invited for a Post-Doctoral Fellowship in Christian Ethics and Public Life, tenable from 1 October 2008 or as soon as possible thereafter. This fixed-term, 5 year position is designed to provide an outstanding academic at an early stage in their career with opportunities for research, teaching, and collaborative work. The initial starting salary for this post is fixed due to the nature of the funding, but annual increments and national pay awards will be payable.

 The fellowship is tenable in the Faculty of Theology, associated with the new McDonald Centre for Theology, Ethics, and Public Life, and carries with it membership of the Senior Common Room at Christ Church.

The successful candidate will hold a doctorate in Christian ethics/moral theology or in a related field. He or she will also show evidence of potential for producing distinguished research in the field of Christian theology, ethics, and public life; the ability to bring advanced research projects to fruition; the ability to teach in Christian ethics/moral theology to a high standard; and competence to engage in collaborative work.

Further particulars, including details of how to apply, are available from the Faculty Board Secretary, The Theology Faculty Centre, 41 St Giles,

Oxford,

OX1 3LW.

E-mail: [email protected]

Telephone: +44 (0)1865 270791 The closing date for applications is 2 June 2008.

Wednesday, May 7, 2008

The Indiana Primary and the Catholic Vote

Given that Senator Hillary Clinton was coming off the best two weeks of her campaign, while Senator Barack Obama was experiencing the worst two weeks of his campaign, Clinton’s slender victory in Indiana and landslide loss in North Carolina is nearly unadulturated bad news for her presidential aspirations. Sure it could have be a little worse. She actually could have lost Indiana. And, for a while last night around midnight, that possibility was looming large. Lake County, Indiana, where Obama was expected to do well (especially in Gary), came under the national spotlight for withholding reporting of votes for many hours after the polls closed. A win in Indiana may allow her to limp on for another week or two. But I don’t know of anyone outside of the Clinton campaign who still thinks she can find a way to the nomination.

As is often the case in politics, the significance of last night’s results depends in good part on how the expectations game was played. Only a month ago, before Pennsylvania and the return of Jeremiah Wright, Obama was expected to win North Carolina by 20 or more points and was thought to be at least even with Clinton in his neighboring state of Indiana. Thus, from that previous point of expectations, last night’s outcomes were unremarkable. But expectations after Pennsylvania and with the Wright controversy had changed dramatically, making anything less than a very good night for Clinton the equivalent of a great loss in the expectations game. And rewinding the campaign back a month in terms of expectations and comparative momentum would hardly benefit Clinton. Back then, she was on the ropes, before Pennsylvania breathed new life into her campaign — temporarily it now appears.

But while last night’s close contest in Indiana and lopsided result in North Carolina reflect a significant shift in the ebb and flow between the two candidates, a closer look at the results (at least in Indiana) suggests a remarkable and continuing stability in the general trends of the Democratic primary vote by demographic groups. The more things change in the prospects of the two candidates, the more they stay the same in terms of how different segments of the electorate have responded to their candidacies.

In series of posts over the past couple of months (here, here, and here), I’ve charted the Catholic vote in the Democratic primaries, documenting the overwhelming advantage that Clinton has enjoyed (and disadvantage that Obama has suffered) among Catholic voters. In the two states that held elections yesterday, Catholics were a smaller segment of the primary electorate, as compared with such earlier primary states as Rhode Island (55 percent), Massachusetts (45 percent), Pennsylvania (36 percent), California (34 percent), and even Ohio (23 percent).

North Carolina has a very small Catholic population, such that Catholics were only about 8 percent of Democratic primary voters yesterday. Thus, North Carolina doesn’t fit the same profile as those previous primary states with substantial Catholic populations and venerable Catholic communities, among which Senator Clinton has compiled huge margins. Clinton did win the overall Catholic vote in North Carolina, even while the state was going by a large margin for Senator Obama, but only by 51-48 percent. Clinton’s margin among white Catholics climbed up to 58-41, which is a bit closer to the larger Catholic margins experienced elsewhere.

By contrast, the basic Catholic voting pattern remained in place in Indiana, although it was somewhat less pronounced than in most previous contests. In Indiana, Catholics accounted for 19 percent of Democratic primary voters. Clinton carried that Catholic vote by a 22 point margin (61-39 percent). While that is a comfortable victory by any estimation, it does fall short of the more than two-to-one and even close to three-to-one rout of Obama among Catholic voters that we have seen in prior state primary votes.

What might account for the reduced Clinton margin among Catholic voters in Indiana, as compared with such nearby states as Pennsylvania and Ohio? At least three possibilities suggest themselves.

● First, perhaps Obama’s free fall among Catholic voters has bottomed-out. If this is true, while Obama still faces an up-hill climb to secure Catholic votes, the incline may not be quite as steep as previously.

● Second, because Indiana lies in Illinois Senator Obama’s backyard, the demographic results in the Indiana primary may be anomalous. After all, for purposes of divining national trends, no one places much weight on how Obama fared among various demographic groups in his home state Illinois primary (where he still lost the Catholic vote to Clinton, but by a closer 50-48 margin).

● Third, the overall Indiana Catholic vote results may indicate a unique “South Bend Effect.” In South Bend, home of the nation’s leading Catholic university, Notre Dame, the unusual mix of demographics created interesting and conflicting tugs and pushes with respect to the Obama and Clinton candidacies. Catholics generally have moved toward Clinton in big numbers (and, in addition, South Bend has a larger blue-collar population, another pro-Clinton constituency, than the average college town). By contrast, affluent white liberals and young people, more prevalent of course in university communities, have gone heavily for Obama in Democratic primary votes. Yesterday, Obama did win St. Joseph County, in which South Bend is the county seat, but by the modest margin of 53-47 percent. By comparison, Obama won Monroe County, where the University of Indiana-Bloomington is located, by 65-35 percent. We would hypothesize that Obama’s margin among non-Catholics in the South Bend area was substantially larger than 53-47 (observing also that almost a quarter of South Bend’s population is African-American, a constituency that has voted for Obama by nearly 90 percent). Thus, Obama probably lost the Catholic vote even in St. Joseph County. But the margin of defeat for Obama among Catholics in South Bend-St. Joseph County presumably was smaller and thus may have had the effect of diluting the heavier tilt toward Clinton among Catholic primary voters elsewhere in Indiana. Our friends at Notre Dame may have a better sense of the reality on the ground there yesterday. If there was a “South Bend Effect” at play yesterday in Indiana, it is not something likely to be replicated elsewhere in the country.

Whatever the reason, and it may well be a combination of all three of these theories and others, losing the Catholic vote in Indiana by only 22 points, rather than 30 or 40 points as elsewhere, should hardly be grounds for celebration in the Obama camp.

Whether the few remaining primary contests will shed any further light on our subject — by way of either confirming the continued and substantial Catholic deficit for Obama or showing that the gap may be narrowing — is hard to say, but I think doubtful.

West Virginia holds its primary next week on May 13, but it is among the ten states with the lowest levels of Catholic adherents (only about 6 percent).

The populations of Kentucky and Oregon, which hold their primaries on May 20, are only about ten percent Catholic. Still, given that Catholics traditionally have leaned Democratic and also tend to turn out to vote more reliably than most other groups, the Catholic portion of the primary vote may be somewhat higher. Oregon offers an interesting political case for other reasons, as those of us who do empirical work on religious demographics recognize it as one of the most secular states in the union (and, not incidentally and also consistently with other voting trends during this primary season, therefore looks to be a lock for Obama).

Looking ahead to June 3, Montana (with just under 20 percent) and South Dakota (with nearly 25 percent) have robust Catholic populations, which again may prove to be an even higher proportion of the Democratic primary voting electorate. And, of course, there is Puerto Rico on June 3 as well, which is overwhelmingly Catholic (85 percent), but also overwhelming Latino, a community that has not warmed to Obama.

But it now is hard to see a fully-fueld Democratic race racing along all the way to June 3. First, Senator Clinton may recognize the realities of the situation and drop out. Second, the super-delegates may shift to Obama in sufficient numbers to give him the majority of the delegates, thus ending any remaining suspense. Or, third, Clinton may stay in the race and plug along, but receive increasingly less attention from either pundits or voters — much as was the case with Governor Mike Huckabee, who stubbornly refused to withdraw from the GOP contest, even though it was clear that Senator John McCain was too far ahead to be denied the Republican nomination.

So, at least until Clinton pulls the plug on her campaign, we’re on to West Virginia next week. But it’s hard to believe a meaningful contest will carry on much beyond that.

Greg Sisk

Improving the Return of Inmates to Society

I commented a couple of weeks ago, in response to a post by Michael P. about a NYT report regarding the prison population in the US, on the failure to provide sufficient assistance to released inmate to facilite their reintegration into society.

Two new Urban Institute reports discuss how more can be done to "improve the odds of inmates' successful return to society," through partnership between local jails and community organizations.  Life after Lockup: Improving Reenty from Jail to Community examines concrete reenty steps and profiles a number of reetnry programs around the United States.  The Jail Administrator's Toolkit for Reentry "is a handbook on such issues as assessment of inmates' needs, identifying community resources, educating the public, and measuring success."  The news release accompanying the reports observes that in an average 3-week period, local jails have contact with as many people as state and federal prisons do in an entire year, creating great potential for their assistance in the transition from incarceration to society.

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?

Defending Obama

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?

"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

Voter ID laws at work

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.

   

On Teresa Collett's Response to Doug Kmiec

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.