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.
Tuesday, October 23, 2007
Bobby Jindal's conversion
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?
Sunday, October 21, 2007
An Abdication of Responsibility—An Erosion of Ordered Liberty—A Triumph for Casey
This morning’s The New York Times has an article on the controversial vote of the Portland, Maine School Board that will enable the independently operated health clinic at the King Middle School (grades six through eight) to provide girls with prescription contraceptives. [HERE] Previously the Portland school system had made condoms available to students. The newly approved program enables the health center physician and nurse practitioners to prescribe contraceptive pills, patches or injections, as well as the morning-after pill. The decision has been met with conflicting reactions—some supportive of, some condemning the decision. One mother in the first camp was quoted by the Times as saying: “I think it’s a great idea… Someone is finally advocating for these students to take care of themselves.” I have the impression that she is not claiming but abdicating the responsibility that properly belongs to her as a parent.
This decision of the Portland School Board is a testament to the most problematic dicta of Planned Parenthood v. Casey about liberty in a democracy: there is “a promise of the Constitution that there is a realm of personal liberty which the government may not enter… At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” I think the Casey dictum reinforces the abdication of parental authority that I just mentioned. Moreover, it reflects of failure of the duties of the public education system and of the family to teach and guide young citizens (children) in how to respond to and decide correctly and morally on the major issues of life; it denies children their childhood; it promotes promiscuity; it will increase, not decrease medical problems that these children will encounter as they mature in years but not in responsibility or nobility; it abandons children to their own devices and unregulated decision making; it promotes the fanatical, isolated autonomy that erodes good citizenship and the development of virtuous people; it will augment the growing separation of children, parents and other responsible adults; it will, in short, provide the groundwork for irresponsible behavior in the future of these children as they grow in years without providing the environment for advance in maturity. This decision is built on the fact that our laws veil with confidence counseling and treatment dealing with matters involving “reproductive health”, mental health, and substance abuse regardless of a patient’s age. The conjured government programs which Winston Smith encountered in 1984 that separated parent from child are, in reality, with us now.
Like many other situations of the present day, it is based on law. The good thing about a democratic society is that it can correct bad laws and make them good. But when it does not, a democratic society moves one step closer to the totalitarian-like structure whose mechanisms for the social order are fortified by a morally deficient positivism which leaves in its wake the destruction of ordered liberty. RJA sj
Saturday, October 20, 2007
Reply to Ryan Anderson re. SCHIP
Thanks to Ryan Anderson for his thoughtful response on SCHIP and pro-life positions.
Let me reiterate from my previous post that the SCHIP debate involved matters of judgment not litmus tests for Christian faithfulness. My objections to Ryan were, first, that people should not misstate the facts about what the vetoed bill would have done. SCHIP would not become (as Ryan claimed in his Weekly Standard article) a "welfare program for the middle class"; it would still largely benefit families with very modest incomes (with 70 percent of the recipients still in families below the line of $41,300 for a family of four, according to the Urban Institute, and a good portion of the others not far above that -- which is not much income given the costs of health care and health-insurance premiums). The bill would not "do nothing" (as Ryan suggested) to get currently eligible but uninsured children covered; by increasing funding and incentives for states to enroll families, it would (according to Congressional Budget Office estimates) mean that 84 percent of the newly enrolled children would be previously eligible for SCHIP or Medicaid (and about 70 percent of the new SCHIP enrollees would be those already eligible for SCHIP -- about 1.5 million versus 600,000 newly eligible). The bill would not involve "nationalized care" as Ryan (like other opponents) claimed; the large majority of its beneficiaries receive and would continue to receive their health care through private managed-care plans (see, e.g., this Kaiser Foundation report, pp. 2-3). A helpful post on these and other SCHIP "myths" is at Vox Nova.
Second, I objected to President Bush criticizing the SCHIP proposal for not focusing on covering the poor when the administration's own proposal for increasing coverage, which relies on tax deductions, would unquestionably deliver a much higher proportion of its benefits to those who are better off. I asked, "Where is the administration proposal that focuses on expanded [insurance] coverage for the modest-income family?," and I still don't see an answer -- from Ryan or others. (The President's other proposal, for health savings accounts, also plainly would not focus on the poor, for reasons that Susan Stabile, among others, has detailed in her article "Poor Coverage," posted to the right.) In that context, I asked whether in this debate, the administration can really be said to have focused on helping those in the most need.
I mean that as a question about what the administration has/hasn't done on this issue, not as a question about people's intentions overall. I agree with Ryan's point that questioning people's hearts is often unhelpful and unfair. For the record, I certainly believe that people across the political spectrum have a concern for those in need, for essentially the reasons he gives. As someone who has written and litigated frequently in support of school vouchers and the faith-based initiative -- and typically worked for and with "conservative" groups in doing so -- I also give a lot of weight to solving problems through assisting subsidiary organizations. Finally, I accept the judgment of those who credit the President personally with concern for the poor. But that doesn't mean the administration has actually done a good job on this front. For example, with respect to the faith-based initiative, the testimony of John diIulio (to whom Ryan refers) -- as well as of David Kuo, Republican congressional supporters of the initiative, and others -- shows that there's been a huge gap between the administration's professed commitment and its actual commitment. As with covering modest-income children's health, the administration's "focus" should be judged by what it's done.
The important question here, it seems to me, is whether it's within the bounds of fair argument to present something like the SCHIP expansion as a "pro-life" policy and therefore to criticize an otherwise pro-life legislator for voting against it. Yes, the Catholics United ad that Ryan lambasted in his Weekly Standard piece was quite simplistic. But if a group believes (as that one does) that expansion of SCHIP responded to a pressing need to get more modest-income but non-Medicaid children covered, and that the alternative proposals wouldn't produce anywhere near the same coverage increase, then the mere fact that others come to a different judgment shouldn't stop the group from arguing that it's correct and the others are wrong. I agree, however, that empirical evidence of that would be better than condemnatory rhetoric: it would be better to explain the arguments that expansion was needed and the alternative proposals were worse. (That's true of many other political ads besides this one, no?)
But Ryan's objection in the Weekly Standard article is broader. Even if there were no reasonable debate about whether SCHIP expansion was necessary to children's health, it appears he would still object to calling children's health a "pro-life" issue. He said that the term should be limited to "opposition to legalized abortion coupled with support for mothers facing crisis pregnancies." (I assume he'd include euthanasia, embryonic stems cells, and other familiar issues.) He said that those who try to expand "pro-life" to encompass "poverty-fighting" goals are "charg[ing] to eviscerate the term." He accused the sponsors of this ad of "gross moral equivocation" and the "intentional hijacking of language" (which itself seems an attack on their motivations); I don't know that he would apply that charge to every case where someone argued for increased government funding of children's health as a "pro-life" policy, but the rhetoric seems plainly aimed at dissuading people from ever making such arguments.
That's the issue I raised in my original post. It seems to me that there is a quite reasonable position that the term "pro-life" should expand to encompass other policy priorities, such as children's health, which have a direct effect on whether vulnerable people live or die (even if the death is not from killing as in abortion, euthanasia, or more controversially the death penalty). Such an expanded set of goals, it's true, runs the risk of diluting the focus on abortion and euthanasia by adding other issues on which people disagree. But the expanded set also has potential advantages too that could be significant. These other issues involve conditions that can affect women's decisions whether to abort (since some fear they cannot afford to raise a child); the conditions also affect whether some children will die, even if the death is not from killing; and expanding the focus to include these issues can, as I said before, "increase the credibility of the pro-life position among those not already committed to it." The pro-life movement needs to do something to win more people in the middle toward greater legal protection for the unborn. And the example of Western Europe suggests that a stronger safety net can help not only to reduce the number of abortions directly, but to make people -- even far less religious people like the Western Europeans -- comfortable with greater restrictions on abortion than we have here (or would have, even if Roe is overturned, in many states).
That debate over the best scope of a "pro-life" agenda should not be ruled out, as it seems to me Ryan's Weekly Standard article tries to do. There should be tolerance for differing positions in that debate, just as Ryan argues there should be tolerance for differing positions on something like SCHIP.
Tom B.
Thursday, October 18, 2007
More from Ryan Anderson on SCHIP
Responding to Tom Berg's recent post, Ryan Anderson sends in the following:
Thanks to Prof. Garnett for posting my Weekly Standard article and this quick note, and [thanks also] to Prof. Berg for his thoughtful response to my article.
Prof. Berg’s comments perfectly illustrate the point I was trying to make; namely that, as I wrote, “there are legitimate arguments on both sides of the debate over this bill.” I outlined some considerations against the bill—and why I thought a faithful Catholic could legitimately oppose it—in my article. Prof. Berg offered some arguments for the bill in his post. I don’t find his case convincing, but we’re not going to settle the American health-care debate here and now. (For a careful reflection on solutions to our health care problems to which I’m generally sympathetic see Eric Cohen and Yuval Levin’s Commentary essay “Health Care in Three Acts.”)
But the point of my article wasn’t the merits of the S-chip debate; I was primarily addressing the parameters of legitimate “Catholic” positions. In particular, I focused on whether a group that purports to “take seriously all our Church’s social and political teachings, and refuses to water down our faith in service of partisan politics” should claim that its favored policy conclusion is the only acceptable one and then run attack ads questioning the pro-life commitments of those who disagree. It seems to me that the Church’s teaching on the legitimate autonomy and liberty of Catholics in the political sphere—within certain moral parameters—is flouted here. I take it that Prof. Berg agrees with me on this point.
Prof. Berg challenged some of my characterizations of the bill. Points similar to mine were made in the New York Times by David Brooks, in the Washington Post by George Will, and in the Weekly Standard by Fred Barnes. Perhaps they have gotten it wrong, and Prof. Berg got it right. Clearly, there is debate—in my opinion, reasonable debate—on this question . Which is, of course, all the more reason for a non-partisan Catholic group not to run the radio ads.
And there is good reason to think that the Democrats’ legislation to expand S-chip is no pro-life bill: When Sen. Wayne Allard motioned to have unborn children covered by S-chip in law (and not by the discretion of administrators, the “unborn child rule”), his motion was defeated 49-50—and you can guess how the vote split.
What I found most curious, though, was Prof. Berg’s calling into question the intentions of those who oppose the proposed legislation to extend and expand S-chip: “I'm not so confident as Mr. Anderson that everyone in the debate is focused on helping the poor.” It is clear in context that he was questioning President Bush’s intentions. This doesn’t quite square with those who know Bush personally and have spent time working with him. Even pro-life, pro-poor Democrat John DiIulio, who has had a rather rocky relationship with the White House, has repeatedly stressed (most recently in his just-released book Godly Republic) that President Bush has very real and serious commitments to the poor. I don’t know if Prof. Berg also questions my intentions, or those of Brooks, Will, and Barnes, or, for that matter, Senator Sam Brownback, who voted against the S-chip expansion and is well known for his big heart for the poor.
It is tiresome—not to mention unhelpful—to insinuate that liberals care for the poor while conservatives do not. This charge also has the vice of being untrue (as Arthur Brooks persuasively argued in his book Who Really Cares?). Rather than assume ill will on the part of those with whom we disagree, we ought to consider that there simply are different ways of being pro-poor. Many conservatives believe and argue that their preferred policy solutions best help the poor. For a taste of this, see Yuval Levin and Peter Wehner’s recent NY Sun op/ed. At the end of the day, we have to realize that there are many competing and conflicting considerations about how to turn our moral and religious convictions into public policy.
To characterize those opposed to S-chip expansion as not really pro-life or not “focused on helping the poor” is simply unhelpful. Some may be. But many are not. (And, if we’re going to take this route, there’s equal room to question the true intentions of those in favor of S-chip expansion.) But the merits and demerits of the bill stand or fall on their own. People acting on equally serious commitments to the poor and with the same basic moral principles can disagree on the technical questions of which policy is most effective. The S-chip debate is not fundamentally a moral or religious one, but a practical one. It falls within the order of being that Aristotle described as techne; it stands in relation to the natural law as what Aquinas termed determinatio. On these questions, reasonable people of good will—including pro-life citizens—can disagree, which is one reason to pause before broadening the pro-life label to include contested legislation of this sort.
Using religion (and charging irreligion) to push through a legitimately disputed piece of legislation truly is partisan in the worst sense of the word—the type of abuse that anyone concerned with religion in the public square should reject. While our faith and moral commitments can tell us that we have real obligations to the poor, they can’t alone tell us how best to meet them.
More on the Ave Maria Litigation
My former research assistant Sarah Prescott is now an attorney with the Deborah Gordon law firm in Michigan, an employment law boutique firm. Along with name partner Gordon, Presoctt just filed suit on behalf of three Ave Maria law school faculty members - Stephen Safranek, Edward Lyons and Phil Pucillo - against the law school, law school Dean Bernard Dobranski, and law school founder and chairman of the board Tom Monaghan. Sarah forwarded a copy of the complaint to me, which I've made available here. An early news report states:
The three professors, Stephen Safranek, Edward Lyons and Phil Pucillo, contend they were wrongfully discharged in violations of the state’s public policy law, whisteblowers’ law and their contracts. Safranek, Lyons and Pucillo also allege conflicts of interest between Monaghan, the law school and other organizations associated with Monaghan. Two of those nonprofits, Friends of Ave Maria School of Law and Ave Maria Foundation, were also named in the suit. AMSL began classes in 2000 in Ann Arbor, Mich. In February, the school announced it would move by 2009 to the new Ave Maria town in Collier County, a town co-founded by Monaghan and centered on Ave Maria University, a university in the Catholic tradition also founded by Monaghan, which began classes at its permanent campus in August. The law school has no official relationship with the university. The lawsuit was not unexpected given the recent controversy at the school. The move and its handling by the school’s administration has been at the center of faculty complaints about the school’s governance in the last two years. Last year, members of the faculty held a vote of “no confidence” in Dobranski and asked the board to remove him, but the board refused. The American Bar Association, which is the primary accreditation body for law schools, is investigating the school’s ability to attract and retain competent faculty members. The ABA also must give its approval for the school to move to Florida.
The news report also states that:
"This lawsuit is the latest debacle in the collapse of Ave Maria School of Law,” the professors’ attorney Deborah Gordon said in a statement posted on the Mirror of Justice, a Catholic legal theory blog.
I have't seen that statement on MoJ. I don't think anybody at MoJ wants to see Ave Maria collapse. To the contrary, our efforts have been aimed at reconciliation so that the law school can go forward in full compliance with the letter and spirit of applicable rules on academic governance.
Update: Gordon's statement in fact was posted at Brian Leiter's blog, not MOJ. The reporter just goofed, apparently.
Update2: Law Blog has more details on the allegations, some of which are quite troubling:
The 20-page complaint focuses the most on plaintiff Stephen Safranek, among the first professors to teach at the school, who reported to authorities his concerns about some Ave Maria staff members’ alleged obstruction of a criminal investigation and the legality of the school’s federal income-tax return, among other things. According to the complaint, on the tax return, the school represented former Supreme Court nominee and Ave professor Robert Bork “as being a full-time tenured faculty member…while paying him as an independent contractor through the Bork Law Firm, PC.” (The Law Blog has reached out to Bork.) The suit also says Safranek reported to authorities that certain staff at Ave Maria obstructed “a criminal investigation into a priest’s alleged involvement in sex offenses, including possession of child pornography.” Safranek was suspended after the school claimed he engaged in some trivial wrongs — from calling the dean a “liar” to his face — and some more serious ones, such as intimidating the dean’s assistant in the parking lot, a charge Safranek denies. Dobranski released this statement: “We are confident that the actions of the School of Law were both proper and legal and we look forward to the court coming to this same conclusion.”
Prior PB.com coverage:
| Title | Excerpt | Date |
| Ave Maria Law School Sued by Faculty | My former research assistant Sarah Prescott is now an attorney with the Deborah Gordon law firm in Michigan, an employment law boutique firm. Along with name partner Gordon, Presoctt just filed suit on behalf of three Ave Maria law school faculty members - Stephen Safranek, Edward Lyons and Phil Pucillo… | 10/18/07 |
| A Reply to Michael Novak re Ave Maria Law | Michael Novak’s writings on economics, Catholic social thought, and theology were a major influence in my journey to Catholicism. So it saddens me to be swiped at by him in his critique of the MOJ statement on the situation at Ave Maria law school (HT-Reynolds): Recently, however, I came across… | 10/03/07 |
| Ave Maria Law Watch | As Walter Olson observes: Ave Maria School of Law keeps lurching from crisis to crisis. A blog called Fumare has been providing extensive coverage. | 10/03/07 |
| Ave Maria Law Watch | From the Detroit News:The alumni board of Ave Maria School of Law has issued a vote of no confidence in the leadership of the Catholic college, the latest attack on an administration that is increasingly the subject of negative Web logs, petitions and complaints. The alumni board last week called—for… | 10/01/07 |
| MOJ Joint Statement on the Situation at Ave Maria School of Law | From MOJ:We, the members of Mirror of Justice, are a group of Catholic and Christian law professors and former law professors. We wish to express our profound concern with the course of events at Ave María School of Law (“AMSL”). While we differ among ourselves in our religious and political… | 09/12/07 |
| Ave Maria Law | We the undersigned alumni and other members of the Ave Maria School of Law community past and present, hereby strongly oppose the actions of the school's administration and Board of Governors in ejecting Professors Stephen Safranek, Philip Pucillo, and Edward Lyons from our community. The administration and Board have disregarded… | 08/27/07 |
| The Meltdown at Ave Maria Law | Mark Sargent provides the full text of a letter signed by the bulk of the Ava Maria law school faculty concerning "the outrageous behavior of the Law School's administration." Mind-boggling stuff. | 04/30/07 |
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