I have been following with great interest the discussion of recusal by Catholic judges. I weighed in over at my personal blog on some of these questions. My post Stare Decisis and Roe v. Wade discusses the question of whether Justice Roberts (assuming he is confirmed) would be bound by Roe. Obviously, the answer is no, but I observe in the post that some on the left are suddenly taking the concept of stare decisis far too seriously. In my post A Religious Test?, I argue it is appropriate (but politically stupid) for Democrat senators to inquire into the role Roberts' faith might play in his judicial decision making.
Wednesday, July 27, 2005
Judge Roberts
Tuesday, July 26, 2005
Christians and the Death Penalty
First Things has made available this essay, "Christians and the Death Penalty," by Joseph Bottum (the magazine's new editor), from the latest issue. It's powerful, and provocative, and has more in it than I can capture here. Here is the conclusion:
To leave the argument against the death penalty in the hands of those who no longer much believe this Christian story is dangerous. The people who think there is no such thing as a blood-debt are always surprised to see crowds outside penitentiaries where executions are about to take place, chanting for the execution. But those crowds appear at executions in the United States for a reason—because blood really does cry out from the ground. “He didn’t suffer as much” as his victims, one bereaved parent objected at Michael Ross’ death. Without the Christian revelation to restrain it, the sense of a blood-debt that must be paid will only grow.
When the jury brought in a sentence of execution for the man in Texas who had dragged to death a black man tied to his truck with a chain, one spokesman for the local African-American community announced that he was normally against the death penalty, but in this case it was justified repayment in blood for two hundred years of lynching. Horrible as that crime was, this is a fright ening thing to hear. The distinction between torts and crimes, between harms done to individuals and evils done to society, is breaking down across America.
You can see it in the recent emergence of civil suits for damages from murders, and the congressional orders for changes in trial procedures to accommodate the victims’ families during the Oklahoma City bombing trials, and the provisions of every new bill for victims’ rights, and the kind of testimony increasingly allowed during sentencing hearings. You can see it, perhaps most of all, in the thought, expressed by nearly everyone at Michael Ross’ execution, that the state’s criminal-justice system was paying something back to the families of his victims. Even Michael Ross came to believe it—came, in fact, to demand it, fighting every attempt to save him—and it is a primitive and pre-Christian understanding of justice.
The divine right of kings was a short-lived political theory, swept under by rival theories in early modern times. A new understanding of the limited sovereignty of government emerged, and one of the primary causes was the gradually developing awareness that Christianity had thoroughly demythologized the state. But that is not, by itself, a stable condition. Without constant pressure from the New Testament’s revelation of Christ’s death and resurrection, the state always threatens to rise back up as an idol. And one sign of a government’s overreaching is its claim of power to balance the books of the universe—to repay blood with blood.
Rick
Romney on the Abortion Status Quo
In today's Boston Globe, Massachusetts Governor Mitt Romney explains why he vetoed a bill that would have expanded access to emergency contraception. Essentially, he argues that the bill would have altered abortion law, which he pledged during the campaign not to change. Here is his justification for that stance:
I understand that my views on laws governing abortion set me in the minority in our Commonwealth. I am prolife. I believe that abortion is the wrong choice except in cases of incest, rape, and to save the life of the mother. I wish the people of America agreed, and that the laws of our nation could reflect that view. But while the nation remains so divided over abortion, I believe that the states, through the democratic process, should determine their own abortion laws and not have them dictated by judicial mandate.
Because Massachusetts is decidedly prochoice, I have respected the state's democratically held view. I have not attempted to impose my own views on the prochoice majority.
I appreciate this deference to democracy, but if he truly wishes that the laws could reflect his prolife views and is legitimately positioned as governor to shape those laws, can deliberate inaction be justified by surveys showing that a majority of voters support the status quo? I suppose that without such a pledge, he would not have been elected in Massachusetts and not positioned to do whatever good he is doing. Still, his reasoning strikes me as a bit curious.
Rob
Revisiting Stephen Carter's Religiously Devout Judge and a Reprise of the Objective Model of Judging
More than fifteen years ago, Stephen Carter anticipated many of the questions that are being raised today about the legitimacy of religoiusly-devout judges drawing upon their religiously-based visions in making judicial decisions. Although he argued that a religiously-devout judge is as entitled to draw upon his religious faith as is another judge to draw upon moral principles, he concluded by asking whether it might not be preferable to return to the aspirational ideal of objective judging so that personal views, whether religious or otherwise, would not be the basis for judicial edicts. Below I set forth some of the concluding words in Stephen Carter, The Religiously Devout Judge, 64 Notre Dame L. Rev. 932 (1989):
"Now, of course, we ought to be uncomfortable with the idea that the religiously devout judge will proceed at once to her religious values—but only for the same reasons that we ought to be uncomfortable with the idea that any judge will proceed at once to her own values. * * *
I expect this proposal to make liberals uncomfortable, because the liberal uneasiness with religion is not readily overcome by brief, scholarly analysis. And yet, even if I have not convinced you that the religiously devout judge ought to be free to rest her moral knowledge on her religious faith, I hope that I have at least offered a plausible case for the proposition that there is no apparent reason to treat her religious faith differently from moral faiths of other kinds. The implication of this insight for the “do-the-right-thing” type of judicial review should be plain—either all judges should be free to rely on their moral knowledge as they make decisions, or no judges should.
The ideal of the objective judge was slain by the legal realists long before the critical legal studies movement resurrected it in order to kill it again. But the ghost of the objective judge refuses to go away. I doubt that the objective judge will die quietly, as long as liberals continue to think that letting a judge rest her decisions on a moral understanding is a good idea. Because once a judge’s moral understanding is permitted to play a role, the liberal argument cannot distinguish religiously based knowledge from other moral knowledge, or at least, cannot do so without arguments that require a bit too much cognitive dissonance. The aspirational model of the objective judge might offer the only path to sanity. And if we continue to pursue distinctions as crazy as this one, a path to sanity will be a useful thing to have."
Greg Sisk
Guest-blogging at Prawfsblawg
The folks at Prawsblawg, a "group of young legal turkeys offering their thoughts on law and the things that really matter in life," have invited me to "guest blog" for a few days. So, check out the conversation. (For some interesting posts on Judge Roberts, religion, and recusal, go here and here and here).
Rick
Review of McGreevy's "Catholicism and American Freedom"
My review (originally published in the Michigan Law Review) of John T. McGreevy's (relatively) recent book, "Catholicism and American Freedom," is now available on SSRN. Here's the abstract:
John T. McGreevy's Catholicism and American Freedom tells the story of how America or, more particularly, American liberalism has reacted and responded to Catholic claims about the nature and purpose of freedom. It also addresses how these claims were, in turn, shaped by Catholicism's own interactions with, internal conversations about, and adjustment to American liberalism. As McGreevy shows, for many people and for many years, the Roman Catholic Church served as a foil for American values and ideals and vice versa. Indeed, it is no exaggeration to say that American liberalism has often defined and constructed itself precisely in opposition to its image of Catholicism. At the same time, Catholic institutions, practice, and belief developed in response to American and liberal challenges, and American Catholics have oscillated uneasily between sectarianism, segregation, and counter-culture, on the one hand, and engagement, accommodation, and assimilation, on the other.
McGreevy's account enriches our studies and conversations not only about church-state relations, but also and more broadly about education, citizenship, and loyalty. His history could improve present-day academic debates about the nature and role of public reason and the place of religious argument and expression in public life, and more generally he takes us to the heart of perennial questions about the prerogatives of the liberal state, the scope and content of religious obligations, and even the nature and end of the human person.
Rick
Recusal Standards and the Catholic Judge
My colleague Elizabeth Brown adds some legal insight to our recusal discussion:
Robert Araujo raises the issue of what are the standards for recusal for Supreme Court Justices. Ed Harnett has addressed this in his post, but it might be useful to provide the relevant language from 28 USC Section 455:
§ 455. Disqualification of justice, judge, or magistrate [magistrate judge]
(a) Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
. . . .
Roberts has represented a large number of corporations while at Hogan & Hartson but he could still hear cases in which these corporations are parties unless he worked on the matters before the Supreme Court for the corporations while he was at Hogan & Hartson or another lawyer at Hogan & Hartson was working on the matters while Roberts was with the firm. 28 USC § 455 (b)(2). Just because he was a partner at Hogan & Hartson, however, does not mean that he must recuse himself from every case involving Hogan & Hartson that may come before the Supreme Court. So Fr. Araujo's example of Justice Ginsburg and the ACLU would be similar to this later situation, i.e., unless Justice Ginsburg had worked on the matter that the ACLU was bringing before the Supreme Court she would not have been required to recuse herself under § 455. While paragraph (a) of § 455 and paragraph (b)(1) require a Justice recuse himself in situations where his impartiality could reasonably be questioned or where he has a personal bias, this generally has not been extended to cover situations in which former clients of the Justice when he was in practice come before the Supreme Court on matters that he did not work on for them when he was in practice. As Ed Harnett has already noted in his posting, paragraphs (a) and (b)(1) of § 455 would be the standard that would be applied to a situation in which a Justice's religious beliefs required that he decide a case in only one way. In this case, he would not be impartial and should recuse himself. For Supreme Court justices, they are their own arbiters of when they need to recuse themselves. So for example, it would solely up to Roberts to determine if the Church's teaching on abortion precluded him from deciding an abortion case on the legal merits but forced him to decide the case in only one way. To date, none of the other Catholic justices have felt compelled to recuse themselves when hearing abortion cases.
Recusal and the Rule of Law
Once again, thanks to those participants who have contributed to the discussion about judicial recusal. I would like to respond briefly to this topic and related matters involving “personal convictions about what the law ought to be.” Let me begin with recusal. I have mentioned before that recusal is a method for insuring that a judge who has a personal stake in a case does not participate in its deliberations. I think this means that if the judge has a direct financial interest in the conclusion, is related to one of the parties, or, as a lawyer, previously directed some aspect of the case for one of the current litigants, he or she should seriously consider recusal.
But let us take another situation. What if a judge has not only been a “member” of the ACLU but was a principal for a number of years. Should this person, if appointed to the bench, recuse himself or herself if the ACLU is a party in a case before this judge? This is the situation in the Kentucky Ten Commandments case in which the ACLU (of Kentucky) was a principal. Justice Ginsburg, who had a long professional association with the ACLU, participated in the case. I do not recall if there was any substantive discussion about whether she should have recused herself, but she did not. And, I do not think that she should have recused herself on the grounds of her membership and former role in the ACLU. So, we come to Judge Roberts. Why should he recuse himself in a case that might involve an issue raising the legal status of abortion? I do not believe that the reason that his “personal convictions about what the law ought to be” is a real issue in determining the matter.
Quite frankly, how do we explain a court overruling itself otherwise? The law that was settled in Plessy was unsettled by Brown. The law that was settled in Bowers was unsettled in Lawrence. The law that was settled in National League of Cities was unsettled in Garcia. The law that was settled in Union Gas was unsettled in Seminole Tribe. Were the personal convictions about what the law ought to be involved in these cases? Perhaps another way of looking at these changes in the law might be this: did the new case provide an opportunity for enough justices to say that the Court was “wrong” in the past, and today in this new case we can rectify the “error of the past” notwithstanding the question of something being previously settled. If Plessy, Bowers, National League of Cities, and Union Gas were “wrong,” what principle in the rule of law insists that Roe was, is, and must always be right?
It may well be that in the eyes and minds of some honest intellectual debate is dismissed as “personal convictions about what the law ought to be.” But, when some reason and logic are permitted to overrule precedent but other reason and logic are viewed as “personal convictions about what the law ought to be,” we have a problem in the rule of law. I understand as well as the next person the political consequences of overruling precedent, but I hasten to add that what is it in Roe that makes this precedent and its progeny immune from the scrutiny of reason and logic, key components of the rule of law? The reason and logic that Judge Roberts may have to bring to the reexamination of any precedent, including Roe, are not grounds for his recusal if the reason and logic of the other members of the Court are not subject to the same examination. If Judge Roberts is a virtuous man, and I think he is, what counts is the quality of his reason and his logic. The related pastoral issues which may sooner or later be involved are for Judge Roberts, his priest, and his bishop to address. RJA sj
The politics of parish closings
According to this article in the Boston Herald, "[c]ity councilors Jerry P. McDermott, James M. Kelly and Paul Scapicchio want the Nov. 8 ballot to include a nonbinding question asking voters whether they agree that the archdiocese has failed to work with the city's neighborhoods to mitigate the impact of Catholic parish and school closings." William Donohue, of the Catholic League for Religious and Civil Rights, responds: ``[This] not only smacks of total disrespect for the principle of separation of church and state, it smacks of bias,'' he said. ``If the goal is accountability . . . why focus exclusively on the Catholic Church? This is sheer, unadulterated demagoguery.''
Rick
Notre Dame's new provost
My own University of Notre Dame has a new provost, Dr. Thomas Burish, formerly president of Washington & Lee University and provost at Vanderbilt. I was particularly -- and favorably -- struck by Dr. Burish's letter to his soon-to-be-former colleagues at W & L:
Notre Dame is my alma mater. It aspires to be both a great academic institution and a great Catholic institution. This latter attribute, being a Catholic institution, is why I went there as an undergraduate, and is a major reason I am now drawn back to it. The challenge of wrapping together this faith-based heritage while further strengthening its academic excellence is a rare opportunity and, for me, a special dream. I did not anticipate this opportunity or seek it, but am excited by it and am grateful for it.
That Dr. Burish has these views -- and is willing to share them with his W & L colleagues -- strikes me as great news for Notre Dame, and perhaps also, more generally, for Catholic education. God bless him.
Rick
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