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, September 8, 2017

Thank you, Senator Feinstein!

By Kevin C. Walsh

In considering Senator Feinstein's revealing TV performance the other day, its openness is the only thing surprising about her open hostility to what a politician who panders to pro-abortionists seems to think of as Professor Amy Coney Barrett's "living dogmatism." The hostility is familiar.

Discerning viewers may have detected an element of unspoken envy as well. ("You have deep convictions. I have to perform for powerful factions. Poor me.") 

It is likely to be several months, though, before we may look back to see that the longest lasting and most powerful effect of Senator Feinstein's revealing phrase was to significantly increase the likelihood that the next Associate Justice of the Supreme Court of the United States would be Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit.

President Trump and his advisers are well aware of the power of the "But Gorsuch!" Effect. And Senator Feinstein has inadvertently created a new celebrity federal judge. 

In our forthcoming Supreme Court round-up for First Things ("A Less Corrupt Term"), Marc and I discuss some ways in which the "reality-TV-ification" of our governing institutions has reached the Supreme Court. The "dogma lives loudly within you" merchandise that has already appeared (reminiscent of the "Notorious RBG" merchandise that has popped up in recent years) suggests the emergence of a certain celebrity factor from unexpected quarters. And that factor will be unquestionably attractive for an Executive Producer looking to revive a flagging series through the Introduction of a New Character to the Show. 

A nomination like this might not be enough to get the Executive Producer invited to speak at Notre Dame's graduation, but it would certainly be good for ratings ... and isn't that what matters these days? So while I agree with Rick that Senator Feinstein's comment was "disgraceful," we might instead consider it "deplorable."

How will this one turn out? We'll have to stay tuned all season to see.

Thursday, September 7, 2017

Paul Horwitz on religious tests, animus, and judicial nominations

By Rick Garnett

Worth a read (as per usual).

Some quick thoughts on "Land O'Lakes" at 50

By Rick Garnett

A few days ago, at Notre Dame, the Cushwa Center convened an event to mark the 50th anniversary of the "Land O'Lakes" statement.  Included in the event was a very thoughtful talk about the event, its context, and its implications by my friend and colleague, Dean John McGreevy (author of, among other things, this great book).  To simplify, Dean McGreevy described the statement as ambitious, not naive, and as reflecting a commitment to deepen Catholic institutions' Catholic character, not to secularize.

The address is not yet available online, but I expect it will be soon.  I enjoyed and appreciated the presentation and -- for the most part -- agreed with it.  Two quick thoughts:  First, I think that discussions of the effects of Land O'Lakes should not focus on the University of Notre Dame.  I agree with Dean McGreevy that Notre Dame is in most respects more meaningfully and interestingly Catholic than it was 50 years ago -- and, as the Statement's writers hoped, it 's certainly better and more important.  I also think that this is, at least in part, a product of the commitments and aspirations expressed in the Statement.  That said, the critics of the Statement, and of the state of Catholic higher education generally, seem to be on solid ground when they say that at many Catholic institutions, this deepening and improving has not happened, and there has been a tendency to secularization, a loss of distinctiveness, etc.  

Next, with respect to the Statement's famous and much discussed opening claim that Catholic universities must have "a true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself":  My sense is that many of those who invoke and endorse the Statement frame this claim as being almost entirely about resisting clunky and ham-handed interventions by bishops in matters of university policy and governance.  Such interventions are, indeed, unhelpful.  However, in today's world, it seems pretty clear to me that the "external" interferences we should be more worried about come in the form of regulations, research-funding conditions, "Dear Colleague" letters, student-loan eligibility, employment law, NCAA policies, and -- increasingly corporate sponsorships.  It seems much more likely that the Department of Education, or the NCAA, or UnderArmour are much more likely to undermine a Catholic university's appropriate autonomy than is the local ordinary.  I see no pressing need for Catholic universities to shy away from healthy, constructive, deferential relationships with the "institutional Church"; I do have serious worries about the implications of our increasing entanglements with ideologically oriented corporations and with regulators.

Wednesday, September 6, 2017

Paul Blanshard lives . . . in the U.S. Senate

By Rick Garnett

I was very proud of my friend and colleague, Prof. Amy Coney Barrett, during her excellent, clear, and composed presentation before the Senate's Judiciary Committee today.  The performance of several of the senators, however, was disgraceful.  Sens. Feinstein, Durbin, Hirono, etc., basically served as a living Thomas Nast cartoon.  I'm hoping that Democrats for Life and others who profess to desire civility, dialogue, and charity will repudiate the tactics employed by these senators. 

UPDATE:  And in Steve Bannon's head.

Tuesday, September 5, 2017

Oren Cass on "Reforming Labor Unions"

By Rick Garnett

In the latest print issue of City Journal (a great publication), and also in this podcast, Oren Cass discusses ways that labor unions themselves, and our labor-regulatory framework, could be reformed to better account for changed realities since WWII and also to strengthen unions -- he proposes "labor coops" -- to make them more meaningful civil-society institutions (rather than primarily partisan actors).  Check it out.  

And, in case you don't have it handy, here's Laborem exercens (1981).

Thursday, August 31, 2017

Dumb Anti-School-Choice Sound Bite

By Thomas Berg

OK, this may be shooting fish in a barrel, but I can't resist....

Illinois has passed a new school funding law that embodies a significant compromise deal by Democrats and Republicans. Among other things, the law reworks the funding formula to rely less on property taxes, thereby increasing the share of funding allocated to poorer districts. It also includes a school-choice measure: a 5-year pilot program of tax credits for people who donate to provide scholarships for modest-income students to attend private schools. Democrats wanted the first of these; Republicans wanted the second. My first reaction, as a temperamental and philosophical moderate, is that it's great simply that the two sides came together. My second reaction is that both of these measures are good for the poorest students: on the one hand, money matters, and on the other, Catholic schools (the largest group of private schools) do an especially good job of educating disadvantaged children.

But some Democrats (I think some Republicans too) didn't go along. They were willing to vote against the funding-allocation changes, and see them defeated, in order to stop a relatively modest school-choice program. One of them, Rep. Will Guzzardi, D-Chicago, offered one of the sillier sound-bites against school choice that I've heard. He told the Chicago Sun-Times: that the program was "unconscionable" because:

“Eventually hundreds of millions of dollars of our public money is going to be diverted away to give tax breaks to very wealthy people and big businesses who are contributing to private school scholarships and that’s wrong to me."

Yes, it's unconscionable to provide a tax break to line the pockets of wealthy people with money that they must give to assist poor people. Indeed, that whole tax deduction thing for gifts made to charities that help the needy--what an unconscionable giveaway to the privileged. 

If you oppose school choice, make your arguments under the real issues: how to get the best educational quality, how to teach kids respect for differing races or religions, etc. Don't mindlessly thrown in progressive-sounding but irrelevant phrases like "tax breaks to very wealthy people and big business."

Tuesday, August 29, 2017

Infranca on "(Communal) Life, (Religious) Liberty, and Property"

By Rick Garnett

I really enjoyed this new paper by John Infranca (Suffolk).  Here is the abstract:

Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalves, including bold assertions that each of these two rights uniquely limits the power of the state and serves as the foundation for other rights. This Article reframes the conception of property rights and religious liberty as foundational by foregrounding communitarian aspects of each right. Property and religious freedom are a foundation for other rights, but in a different manner than traditional accounts suggest. It is not the individual exercise of these rights that provides a foundation for other rights, but rather the complementary roles these rights play in the formation of normative communities that, in turn, serve as counterweights to the state. 

This Article makes three distinct contributions to existing legal literature. First, it reveals the significant similarities in historical and theoretical conceptions of the foundational status of these two rights. Second, it integrates the developing scholarly literature on the communal and institutional nature of these two rights. Third, it builds upon this literature to contend that the right to property and religious freedom can indeed provide important foundations for rights more generally, but only if we sufficiently protect and nurture, through law, the communities and institutions upon which these rights depend. The Article concludes by suggesting new approaches to assessing a diverse set of contemporary legal disputes: religious communities seeking to locate in the face of local government opposition, Native American communities challenging government actions on sacred lands, and Sanctuary churches opposing immigration enforcement by sheltering individuals on their property.

 

Call for Papers: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

By Rick Garnett


Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the eighth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility, with submissions limited to those that have a publication date of calendar year 2017. The prize will be awarded at the 2018 AALS Annual Meeting in San Diego.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected]<mailto:sl[email protected]>.  The deadline for submissions and nominations is Sept. 1, 2017.

Monday, August 28, 2017

The pardon of ex-Sheriff Joe Arpaio

By Rick Garnett

The other day, on Twitter, my friend (and fellow Prawfsblogger) Daniel Rodriguez tweeted a plea ("[W]here is the Holy Father where you need him?")  for Pope Francis to weigh in on the current President's decision to pardon former Maricopa County Sheriff Joe Arpaio of his criminal contempt conviction.  I'm not sure, actually, I want the Pope to weigh in on specific matters like this, but put that aside.  A few, decidely not-papally-endorsed thoughts:

First, I take it that there is no "Catholic" position on the questions (a) whether our Constitution gives the President the power to grant this pardon and (b) whether our Constitution authorizes federal judges to review this (or any other) pardon.  I assume the answer to (a) is "yes" and the answer to (b) is "no."  

Second, I believe, and have often said publicly, that executives should use their pardon and commutation powers, to correct injustices or to show mercy, more often and more generously than they do.  Yes, the power has often been abused (e.g., Marc Rich should not have been pardoned, in my view, and Chelsea Manning's sentence should not have been commuted when and as it was), but it should be prudently and meaningfully exercised.  

Third, it seems to me that the pardon of ex-Sheriff Arpaio is a gross misuse of the pardon power.  (My family moved to Arizona in the mid-1980s, and I'm very familiar with Arpaio's record, which is not "conservative" so much as it is petty, cruel, grandstanding, and ugly.)  The pardon, like the President's responses to the events in Charlottesville, sends a terrible message and reveals (or, rather, confirms) the President's unfitness for the office he holds.  The remedies for this abuse are political (e.g., public criticism, elections, impeachment, etc.) not judicial, but an abuse it still is. 

Fourth, we should distinguish entirely warranted criticisms of Arpaio and his record from broader questions about the content and enforcement of immigration law and policy.  One can (easily) think that Arpaio's record is indefensible and that it is not racist or contrary to Catholic Social Teaching to (reasonably and humanely) enforce borders and immigration laws.  Of course, to the extent this latter position is identified with Arpaio and his record, it will lose credibility in the minds of many.

So, when the Holy Father calls, Dan, that's what I'll say!  =-)

Sunday, August 27, 2017

On what makes Cornel West tick . . . .

By Robert George

Some time back a writer for the radical left-wing magazine Jacobin interviewed me for a profile he was writing of my friend and teaching partner Cornel West. In the end, none of my comments made it into his article. Here is what I told him:

What a lot of people on the left as well as the right fail to understand about Cornel West is his profound integrity. But to fail to grasp that is utterly to misunderstand who the man is and why he does what he does and says what he says. Cornel will speak the truth as he best understands it no matter what. Of course, he is not infallible, nor does he claim to be. Like the rest of us, he can err. (Unlike far too many people, though, he is always open to argument and willing to reconsider and revise his views where compelling reasons for doing so have been provided.) But where faith and reason lead him to a certain judgment, he will take his stand there and say exactly what he believes to be true—no matter whose ox is gored, and no matter the consequences for himself personally. Truth has priority for him. He will never under any circumstances sacrifice the truth or go silent about it to be “a good team player” or even to avoid being accused of giving aid and comfort to political opponents. Much less will he compromise his vocation as a truth-teller to gain or maintain influence or “access.’  People who do not understand that, do not understand him.

Of course, in this cynical and selfish age, a lot of people don’t get any of this. They assume that the truth-teller really is just one more operator, like everyone else. They suppose that he’s got some hidden agenda, that he’s motivated by some selfish or partisan interest, that he’s got some racket going. So Cornel’s critics cynically and falsely accuse him of craving attention; of carrying out some personal vendetta against, for example, President Obama or Hillary Clinton; of jealously guarding his status as the leading Black public intellectual against younger rivals who seek to displace him. But for anyone who actually knows him—who understands his heart, what makes him tick—this is utter nonsense. What explains what he does and says is the fact that he is a truth-driven radical Christian. What he is doing is trying to bear witness to the truth, as God gives him to understand the truth, and he places every gift he has been given, from his intellect to his celebrity, in the service of that vocation.

Cornel and I disagree about various things (though we also agree on many things that might surprise people): I am a moral and, in many ways, political conservative. He is a man of the left. But I love and respect him because he possesses and acts on the love of truth and commitment to truth-telling to which I myself aspire. That creates and sustains a bond between us that is far more powerful than even the most important political or policy differences dividing us. And it enables us to understand each other in ways that elude many others, including people on our respective “sides” of the ideological spectrum and even some of our oldest friends.

Throughout history and across cultures, truth tellers have never been very popular. People are fine with the truth when it squares with their preconceived notions, but not when it challenges them. They would prefer to be reinforced in what they already believe or in their wishful thinking or personal self-interest or ideological and partisan commitments. As a serious Christian, Cornel fully understands this. So he is scarcely shocked by the fact that he is misunderstood and in some circles on both the left and right and even vilified and defamed. He’s prepared for that and can live with it. It will not deflect him from his mission or cause him to soft-pedal his message. He has experienced worldly recognition and honors, and he enjoys those things; but he is not addicted to them nor does he live for them. He is no idol worshiper. If the “cost of discipleship” means giving them up, he will do that without blinking an eye. His horizon is a transcendent one, not a worldly one. He knows where his ultimate duty and allegiance lie. There’s an old hymn that always comes to my mind when I think of Cornel’s work and witness. It’s called “I’d Rather Have Jesus’:

I’d rather have Jesus, than silver and gold;

I’d rather have Him, than riches untold.

I’d rather have Jesus, than worldwide fame;

I’d rather be true, to his sacred Name.

If you understand that, then you understand the brilliant son of Clifton and Irene West.

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