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, April 26, 2007

Just for the record ...

In response to Rick's post:

My suggestion that the situation at OHSA should be of concern to all of us for whom the life of every human being is precious--is that a controversial proposition?-- was not an effort to link the controversy over OHSA policies to the controversy over partial-birth abortion.  (I still don't know where Rick stands on the OHSA policies.)  For the record, and as I explained to my students this week:  I think Justice Kennedy got it right in the partial-birth abortion case; that is, even given Roe v. Wade, I think the decision in Gonzales v. Carhart was right.

Just as I think that Justice Kennedy got it right in the death-penalty cases.  On the reasonableness/unreasonableness issue:  Reasonableness in this context is, I think, a matter of degree.  I invite MOJ bloggers and readers to read the three death penalty cases and then decide how a Cathoilic justice--or indeed any justice for whom the life even of the most depraved criminal is precious--should have voted, all things considered--not least, that in each case the life of a human being hung in the balance.  (Which opinion(s) would you have joined or concurred in, Rick?)

About the dismissal of the U.S. attorneys:  To say, as Rick does, that the White House is entitled to dismiss them is ambiguous.  Surely Rick doesn't think that the White House is entitled--either morally or legally--to dismiss them for certain reasons.  And to say, as I did in my post, that Rick's position is complacent is to say that Rick gives no indication, in his (shoulder-shrugging) comments, of having taken seriously enough the possibility that the White House dismissed at least some of the U.S. attorneys for  morally and legally objectionable reasons.

Wednesday, April 25, 2007

Two Responses to Rick Garnett

1.  Rick's comment re the OSHA story (here) strikes me as complacent.  (As did Rick's earlier comment about dismissal of the several U.S. attorneys, when the story first broke and I posted a piece by the NYTs Adam Cohen.  I could almost see Rick shrugging his shoulders as he said, in effect, what's the problem, the White House and Gonzales are entitled to do what they want, the U.S. attorneys are political appointees after all.)  Rick writes:  "I have no idea whether OSHA is employing sensible policies or not."  Well, I would love to hear what Rick thinks when he has had time to achieve some clarity about the matter.  (Just as I would love to hear what Rick now thinks about the dismissal of the U.S. attorneys.)

2.  In response to Rick's question to me about the three capital punishment cases decided by the Supreme Court today:  If there is room for a reasonable difference in judgments about the proper outcome of the cases, which way should the benefit of the doubt be resolved, when a human being's life hangs in the balance?  (I think I know how John Noonan would respond.).  Of course, one may say that there isn't room for a reasonable difference in judgments--that Kennedy and the four non-Catholics justices were not merely wrong but unreasonably wrong.  Ah, such confidence!  But is such confidence appropriate, much less admirable, when a human being's life hangs in the balance?

Notice How the Five Catholic Justices Split in these Capital Punishment Cases

And which Catholic(s) got it right?  Justice Kennedy or Justices Scalia/Thomas/Roberts/Alito?

April 25, 2007

Supreme Court Throws Out 3 Death Sentences

ASSOCIATED PRESS  

Filed at 11:19 a.m. ET

WASHINGTON (AP) -- The Supreme Court threw out death sentences for three Texas killers Wednesday because of problems with instructions given jurors who were deciding between life in prison and death.

In the case of LaRoyce Lathair Smith, the court set aside the death penalty for the second time. It also reversed death sentences for Brent Ray Brewer and Jalil Abdul-Kabir.

The cases all stem from jury instructions that Texas hasn't used since 1991. Under those rules, courts have found that jurors were not allowed to give sufficient weight to factors that might cause them to impose a life sentence instead of death.

The three 5-4 rulings had the same lineup of justices, with Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter and John Paul Stevens forming the majority.

''When the jury is not permitted to give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence...the sentencing process is fatally flawed,'' Stevens wrote in Abdul-Kabir's case

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.

Roberts took aim at his colleagues in the majority in dissents he wrote in the Abdul-Kabir and Brewer cases. The court should have deferred to lower court rulings against the defendants because there was no clearly established federal law that judges could have followed to grant relief.

''Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.

Smith was sentenced to die for the murder of Jennifer Soto, a former coworker at a Taco Bell who was stabbed and shot in a failed robbery.

In 2004, the justices overturned Smith's sentence because jurors were not allowed to consider sufficiently the abuse and neglect that Smith had suffered as a child.

The Texas Court of Criminal Appeals reinstated the death penalty, however, saying any errors involving the jury instructions were harmless.

Abdul-Kabir, also known as Ted Calvin Cole, was convicted in 1988 of using a dog leash to strangle Raymond Richardson, 66, during a $20 robbery at his San Angelo home. Abdul-Kabir's lawyers contend the jury that condemned him had no way to take into account the mistreatment and abandonment that contributed to his violent adult behavior.

The same sentencing problems applied to Brewer, convicted of fatally stabbing 66-year-old Robert Laminack, who was attacked in 1990 outside his Amarillo flooring business and robbed of $140. Brewer was abused as a child and suffered from mental illness, factors his jurors weren't allowed to consider, according to his petition.

The 5th U.S. Circuit Court of Appeals had upheld the death penalty for Brewer and Abdul-Kabir.

Forty-seven inmates on Texas' death row were sentenced under the rules that the state abandoned in 1991.

The cases are Smith v. Texas, 05-11304, Brewer v. Quarterman, 05-11287, and Abdul-Kabir v. Quarterman, 05-11284.

Too Many Catholics on the Court?

New York Times
April 25, 2007

On the Record

The Supreme Court’s Catholic Majority
By ROBIN TONER

The five justices who turned the Supreme Court around last week and upheld the ban on “partial birth abortion” had much in common.

All are men. All were nominated by conservative Republican presidents. And, it was widely noted, all are Roman Catholics.

Did their religion matter? Should it even be discussed? In the wake of the 5-4 ruling in Gonzales v. Carhart, these questions have been raised and debated in venues from the blog of the American Constitution Society (where Geoffrey R. Stone, a constitutional law professor, said the justices’ religious identity was “too obvious, and too telling, to ignore,”) to ABC’s “The View,” (where Rosie O'Donnell declared, "How about separation of church and state in America?" according to ABC News.)

The pushback from conservative Catholics was immediate - even pre-emptive. Bill Donahue, president of the Catholic League for Religious and Civil Rights, declared, “We need more, not fewer, Catholics on the Supreme Court.” On his Web site, the Rev. Richard John Neuhaus, an influential conservative, wrote last week, “I expect it is on the minds of many, but so far there has been only marginal public comment on the fact that all five in the Carhart majority are Catholics.” He added, “What can one say? Know-Nothings of the world unite?”

This discussion was probably inevitable: Catholics, for the first time, hold a majority of seats on the Supreme Court, after decades when there were, typically, only one or maybe two “Catholic seats” on the bench. Two of the Catholic justices, Chief Justice John Roberts and Justice Samuel Alito, were confirmed only in the past two years, in an ideologically charged environment in which all sides were eager for clues on how they might rule on abortion rights and other hot-button issues.

With so much unknown about their legal leanings, their religion became a proxy for both sides -- a source of reassurances for conservatives, and of anxiety for liberals. But the nominees’ supporters discouraged any questions about the role of their faith in the confirmation hearings, essentially arguing that it would amount to an unacceptable “religious test” for public office.

Now, with an actual opinion on abortion from the new court in hand, the debate has moved from the theoretical to the concrete. Some legal scholars say the Catholicism of the five justices, in and of itself, means less than their conservatism. Yes, the Church hierarchy denounces legalized abortion, but many Catholics in public life, over the years, have drawn a bright line between their private beliefs and their public duties (memorably, John F. Kennedy in 1960, and Mario Cuomo in 1984).

Scholars also note that Justice William Brennan, who was carefully appointed to the “Catholic seat” by President Dwight Eisenhower, turned out to be one of the key supporters of the constitutional right to abortion. “There can be no greater proponent of a pro-choice vision of the 14th amendment than William Brennan,” said David Yalof, an associate professor of political science at the University of Connecticut and a scholar of the judicial selection process.

John Green, a senior fellow at the Pew Forum on Religion and Public Life, said that the existence of a Catholic majority on the court should not be minimized as a historical marker of “just how much the nation has changed over the last century.” But, he added, “When it comes to predicting what they will do, it’s important to note that this is a Republican Catholic majority.”

In fact, American Catholics are very much a two-party religion. The Catholic vote has typically split in recent presidential elections, and Catholic elected officials fill the top ranks of both parties. Speaker Nancy Pelosi, Senator Edward M. Kennedy, Senator Patrick Leahy and the 2004 presidential nominee, Senator John Kerry, are all Catholics - and Democrats who support abortion rights.

Ralph Neas, the president of People for the American Way, has been a fierce opponent of many of the Bush Administration’s judicial nominees - and is also a Catholic. “My problem with the right wing bloc on the court is their view of the Constitution, not their religion,” Mr. Neas said in an interview. “I am absolutely certain their views do not represent all American Catholics.”

In short, any discussion of the new Catholic majority on the Supreme Court only underscores the complicated, subtle role of religion in the public square - nearly 47 years after Kennedy tried to reassure an anxious country that it was safe to elect a Catholic. “I do not speak for my church on public matters, and the church does not speak for me,” Kennedy declared in September 1960, when American Catholics were on the brink of their political ascendancy, and the questions they faced were more raw, but also more simple.

This is the United States of America?

New York Times online
The Opinionator

The domestic Abu Ghraib, continued: National Review Online writer Andrew Stuttaford praises the “lengthy letter” by David Kaiser, president of Stop Prisoner Rape, that was published in The New York Review of Books. At The Corner, Stuttaford writes:

The letter is important in that it once again focuses attention on a state of affairs that has remained a national disgrace for far too long, but more than that it offers a number of useful suggestions including better educational facilities (yes, it shouldn’t be necessary to say this, but they matter..), proper use of protective custody, and more effective law enforcement within prisons. The Eight Amendment is there. Use it.

Stuttaford also excerpts a quote from Kaiser’s letter (making this item a blogtastic quote within a quote): “DeParle writes, ‘Since 1980 the murder rate inside prisons has fallen more than 90 percent, which should give pause to those inclined to think that prisons are impossible to reform.’ We could similarly reduce the incidence of rape in prison.”

Tuesday, April 24, 2007

April 24, 2007

Vote to Legalize Abortion in Mexico City

   
MEXICO CITY (AP) -- Mexico City lawmakers voted to legalize abortion Tuesday, a decision likely to influence policies and health practices across Mexico and other parts of heavily Roman Catholic Latin America.

The proposal, approved 46-19, with one abstention, will take effect with the expected signing by the city's leftist mayor. Abortion opponents have already vowed to appeal the law to the Supreme Court, a move likely to extend the bitter and emotional debate in this predominantly Catholic nation.

''Decriminalizing abortion is a historic triumph, a triumph of the left,'' said city legislator Jorge Diaz Cuervo, a social democrat who voted for the bill. ''Today, there is a new atmosphere in this city. It is the atmosphere of freedom.''

Nationally, Mexico allows abortion only in cases of rape, severe birth defects or if the woman's life is at risk. Doctors sometimes refuse to perform the procedure even under those circumstances.

The new law will require city hospitals to provide the procedure in the first trimester and opens the way for private abortion clinics. Girls under 18 would have to get their parents' consent.

The procedure will be almost free for poor or insured city residents, but is unlikely to attract patients from the United States, where later-term abortion is legal in many states. Under the Mexico City law, abortion after 12 weeks would be punished by three to six months in jail.

Mexico City is dominated by the leftist Democratic Revolution Party, at odds with President Felipe Calderon's conservative National Action Party, which opposed the abortion measure.

''We go to great lengths to protect (sea) turtle eggs,'' said city lawmaker Paula Soto, a member of Calderon's party. ''Lucky turtles! It appears they have more people willing to defend them than some unborn children.''

The law alarmed Calderon's party and prompted authorities to send ranks of riot police to separate chanting throngs of opposing demonstrators outside the city legislature.

''We want this law, because it means the right to choose,'' said Alma Romo, who described herself as a feminist. ''Unfortunately, there are some people who do not want to grant us that right.''

The Roman Catholic church has protested the measure and Mexico City Cardinal Norberto Rivera led a march through the capital last month in opposition. The Archdiocese said Tuesday that it would ''evaluate the moral consequences of the reforms'' and said Rivera would have no public comment on the vote until Sunday.

The only countries in Latin America and the Caribbean with legalized abortion for all women are Cuba and Guyana. Most others allow it only in cases of rape or when the woman's life is at risk. Nicaragua, El Salvador and Chile ban it completely.

The New York-based Center for Reproductive Rights, the legal arm of the reproductive rights movement globally, applauded the Mexico City law as ''historic.''

''This will serve as a model to get abortion accepted not only nationwide, but also in Latin America and the Caribbean, where women who interrupt their pregnancies are still sent to jail,'' said activist Elba Garcia, 24, who rode a flatbed truck in an abortion rights caravan through downtown Mexico City on Monday.

Recent newspaper polls showed that a majority of Mexico City residents support legalized abortions, at least in the first weeks of pregnancy.

The proposal has created an emotional confrontation in a country where the majority of people are Roman Catholic.

Calderon has opposed the proposal, and church leaders have led protests that pushed the limits of Mexico's constitutional ban on political activity by religious groups.

Opponents argue that life begins at conception and say the law would violate the Mexican Constitution's protection of individual rights. Supporters say the law would save the lives of thousands of women.

The city and its suburbs are home to about one-fifth of the country's population, and many Mexicans travel to the capital for medical treatment. Opponents fear the local law could attract women across Mexico seeking abortions.

An estimated 200,000 women have illegal abortions each year in Mexico, based on the number who show up at hospitals later seeking treatment for complications, said Martha Micher, director of the Mexico City government's Women's Institute.

Botched abortions using herbal remedies, black-market medications and quasi-medical procedures kill about 1,500 women each year and are the third-leading cause of death for pregnant women in the capital, Micher said.

 

Saturday, April 21, 2007

Speaking of Pro-Life ...

New York Times
April 22, 2007

In Turnabout, Infant Deaths Climb in South
By ERIK ECKHOLM

HOLLANDALE, Miss. — For decades, Mississippi and neighboring states with large black populations and expanses of enduring poverty made steady progress in reducing infant death. But, in what health experts call an ominous portent, progress has stalled and in recent years the death rate has risen in Mississippi and several other states.

The setbacks have raised questions about the impact of cuts in welfare and Medicaid and of poor access to doctors, and, many doctors say, the growing epidemics of obesity, diabetes and hypertension among potential mothers, some of whom tip the scales here at 300 to 400 pounds.

“I don’t think the rise is a fluke, and it’s a disturbing trend, not only in Mississippi but throughout the Southeast,” said Dr. Christina Glick, a neonatologist in Jackson, Miss., and past president of the National Perinatal Association.

To the shock of Mississippi officials, who in 2004 had seen the infant mortality rate — defined as deaths by the age of 1 year per thousand live births — fall to 9.7, the rate jumped sharply in 2005, to 11.4. The national average in 2003, the last year for which data have been compiled, was 6.9. Smaller rises also occurred in 2005 in Alabama, North Carolina and Tennessee. Louisiana and South Carolina saw rises in 2004 and have not yet reported on 2005.

Whether the rises continue or not, federal officials say, rates have stagnated in the Deep South at levels well above the national average.

Most striking, here and throughout the country, is the large racial disparity. In Mississippi, infant deaths among blacks rose to 17 per thousand births in 2005 from 14.2 per thousand in 2004, while those among whites rose to 6.6 per thousand from 6.1. (The national average in 2003 was 5.7 for whites and 14.0 for blacks.)

The overall jump in Mississippi meant that 65 more babies died in 2005 than in the previous year, for a total of 481.

[To read the rest of this disturbing article, click here.]

Thursday, April 19, 2007

Evangelicals on the Left? God Forbid!

Sightings  4/19/07

Evangelicals on the Left?  How Shocking!  How Awful!
-- John G. Stackhouse


Martin Marty wrote on Monday about evangelicals from his vantage point outside evangelicalism -- but within the fellowship of those he likes to call the "original evangelicals," namely, Lutherans.  From within (latter-day) evangelicalism, then, I offer this week's second observation of this burgeoning movement.

I have been wondering why people both within and without evangelicalism are so surprised -- and sometimes even upset -- about the emergence of a "non-right-wing" evangelicalism in America.

For example, the executive of the National Association of Evangelicals (NAE) recently endorsed a document produced by a group called Evangelicals for Human Rights that condemns the use of torture, and calls on the United States government in particular to forswear its use.  This action, coming after last year's declaration of concern about global climate change by evangelicals as prominent as Rick "Purpose Driven" Warren, has aroused shock and awe among many on the right who had previously enjoyed arrogating the term "evangelical" entirely to themselves.

Mark Tooley of "Front Page Magazine" says that "the 17-member drafting committee, called 'Evangelicals for Human Rights,' is comprised nearly exclusively of pseudo-pacifist academics and antiwar activists who sharply condemn the Bush administration."  (One notes with bemusement this characterization of, for example, drafter David Neff, editor of the notoriously non-left-leaning Christianity Today magazine.  And one asks again the perennial question, What exactly is a "pseudo-pacifist"?)

Indeed, Tooley pronounces the ultimate doom on the NAE and its fellow-travelers: They are on the same leftist path to irrelevancy, if not heresy, as the National Council of Churches -- an insult no greater than which can be conceived in these circles.

The same week as this bit of excitement was brewing, Michael Kerlin of Philadelphia's "Evening Bulletin" wrote of "A Different Kind of Evangelical" -- namely, a typical South American evangelical who votes with left-wing political parties because they promise relief and social change from the establishment's oppression.  Mr. Kerlin suggested that as the First Evangelical was touring South America, President Bush might have liked to know that the average evangelical is more likely to vote for the likes of Daniel Ortega or Hugo Chavez than anyone else.  He or she would do so because the alternative choices usually mean voting for the old regime of landowners or the new regime of business magnates, not to mention the Roman Catholic hierarchy, which is often identified with both.

Meanwhile, our gaze returns to North America, where evangelicals are excited about the release of the movie Amazing Grace, the story of William Wilberforce and the campaign to abolish the British slave trade.  But in the context of these contemporary observations, we might ask whether this evangelical hero would be more likely to line up today with Jim Dobson or Jim Wallis.

Of course, it is anachronistic in the extreme to try to situate Wilberforce in terms of today's American political landscape.  And there wasn't a lot of socialist theory to attract Wilberforce's interest -- he died in 1833, in the earliest decades of socialist thinking and fifteen years before the Communist Manifesto was published.  But the abolition of slavery is what anyone would have to call government-initiated broad structural change on behalf of justice -- which is what socialism ideally is all about.  So it's certainly not clear that Wilberforce would maintain the current religious right's narrow focus on the (free, white, prosperous) family, so to speak.

Indeed, as a Canadian who has lived all his life with a third national political party dedicated to democratic socialism and founded by a Baptist pastor; as one with a nodding acquaintance with social democratic movements in Britain, the European Continent, and Australasia; and as one who notes that George W. Bush's best political friend in the world is a Christian man who leads the British Labour Party -- well, the idea that evangelicalism should be confined to the American right strikes me as something that could literally happen only in America.

References:
Laurie Goodstein's article "Evangelical Leaders Join Global Warming Initiative" (New York Times, February 8, 2006) can be read at: http://www.nytimes.com/2006/02/08/national/08warm.html?ex=1297054800&en=c3998565b07f9657&ei=5088&partner=rssnyt&emc=rss.
Michael D. Kerlin's article "A Different Kind of Evangelical" (The Evening Bulletin, March 12, 2007) can be read at: http://www.thebulletin.us/site/news.cfm?newsid=18068434&BRD=2737&PAG=461&dept_id=576361&rfi=6.
Mark Tooley's article "The Evangelical Left's Tortured Logic" (FrontPageMagazine.com, March 15, 2007) can be read at: http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=27382.
John G. Stackhouse, Jr., is Sangwoo Youtong Chee Professor of Theology and Culture at Regent College in Vancouver, Canada.

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Walter Murphy, Antonin Scalia, and Cafeteria Catholicism

[MOJ readers may find this interesting.]

April 4, 2007

A moment with...


Walter F. Murphy

Walter F. Murphy, the McCormick Professor of Jurisprudence, emeritus, returned to Princeton in early March for a symposium on his new book, Constitutional Democracy: Creating and Maintaining a Just Political Order, which explores the lessons of constitution-making from ancient Greece to today. The book is being hailed as a masterwork capping a distinguished career. Murphy spoke with PAW contributor Merrell Noden ’78 after the conference.

You said that you are on a terrorist watch list and so were stopped by airport security on the way to this event at Princeton. Why?

Yes. I’m a retired colonel in the Marine Corps [awarded the Purple Heart and Distinguished Service Cross], which would indicate that I’m probably not a terrorist. But I did speak against Bush [atPrincetonlast September]. That’s the only reason I can give.

You argue in your book that the Constitution is open-ended about who should interpret it.

It isn’t judges alone who should interpret the Constitution, but presidents and members of Congress ... and also the electorate. By 1936 the Supreme Court had declared unconstitutional almost every important part of Franklin D. Roosevelt’s New Deal. He ran for re-election and he carried 46 states. That was just a stinging [electoral] rebuke to the Court.

Speaking of presidents, George W. Bush has twice sworn to “preserve, protect, and defend” the Constitution. How’s he doing?

Poorly. He has said, “I am the decider” and ignored congressional statutes. Recently, he said he would go to the courts for warrants to wiretap. But for four-plus years he said he wouldn’t, and his excuse was so lame as to be totally unbelievable. He said it would take too long. Well, there’s a special court set up that meets in secret, designed to make sure that what Richard Nixon did would never happen again. While I’m not an originalist, I think you’ve got to take a lot of what people like Madison and Hamilton said very seriously. And in the Federalist Papers, Madison said if all power is concentrated in the hands of a single person, a single office, or a single branch of government, you’ve got the definition of tyranny.

I have chided some of my originalist friends, who say, look to an originalist understanding. The objective these [framers] apparently shared was a determination to prevent the recurrence of what the British called “writs of assistance” — where the executive could search and seize without a judicial warrant. It’s the classic thing that the Fourth Amendment was designed to prevent! But I have not heard one single originalist raise that objection against Bush’s policies. They raised it against Johnson, against the Supreme Court. Not against Bush.

What sparked your interest in the Constitution?

Mine was generated by an undergraduate course in constitutional law, which I found fascinating. I went off to graduate school at [the University of] Chicago without intending to study it. But a number of things happened. I fell in with a marvelous professor. And also it turned out that some school desegregation cases were coming up in Charleston [S.C., where Murphy grew up], and some voting-rights cases, too. One of my neighbors in Charleston was a federal judge who suddenly had a spate of cases before him. He decided for the blacks and was ostracized from the local community. Somebody fired a shot through his window at night.

Were you aware of all that ugliness when you were growing up?

Being a white Irish Catholic in the deep South, in the Bible Belt, I felt a lot of discrimination. When Kennedy was assassinated, my mother, who was still teaching high school in South Carolina, said she received a note from the principal on that Friday afternoon that said, “John F. Kennedy has been assassinated. Please announce this to your students, and please instruct them that they shall not applaud.”

I was denied admission to Princeton as an undergraduate. I was first in my class at a Catholic high school and won a National Merit Scholarship. I got a letter from the admissions committee saying, “We think you’d be happier at a Catholic school.”

You ultimately did go to a Catholic university, to Notre Dame, and you’ve written three novels in which religion plays a significant role. Are you a religious person?

I’m a Catholic of sorts. I like to think I’m a Catholic, but I’m sure the pope would look on me as a heretic. [Supreme Court Justice Antonin] Nino Scalia, who’s an old friend, very intelligent with a great sense of humor — we sometimes can go 10 minutes without shaking fingers at each other! — claims I’m a “cafeteria Catholic,” meaning I pick and choose. And he’s right. He says my attitude on birth control is wrong. But on the death penalty, he doesn’t take the Catholic position. He’s cafeteria, too. We just have different selections.

Tuesday, April 17, 2007

COMMONWEAL on The Iraq War, the Bishops, and the Bishops' Critics

April 20, 2007 / Volume  CXXXIV, Number 8  

EDITORIAL

Bishops & Their Critics

The Editors


President George W. Bush’s decision to go to war with Iraq was initially supported by a host of liberals, among them New Republic editor Peter Beinart and New Yorker writer George Packer. These commentators were convinced that Iraq posed an imminent threat to its neighbors and that Saddam Hussein’s regime had to be removed for both security and moral reasons.

As the administration’s case for war was gradually exposed as a fabrication and the botched nature of the occupation became clear, most of these liberals have admitted they were wrong.

No such admissions of error, or even regret, have been issued by outspoken Catholic neoconservatives who, using the most tortured just-war arguments, publicly defended Bush’s war of choice. Michael Novak, of the American Enterprise Institute, even flew to Rome to persuade the Vatican not to oppose the invasion. In First Things, George Weigel, of the Ethics and Public Policy Center, memorably lectured religious leaders on the “charism of political discernment” enjoyed by those in the White House (“Moral Clarity in a Time of War,” January 2003). It was a charism, Weigel pointedly wrote, “not shared by bishops.” He assured the war’s critics that elected officials “are more fully informed about the relevant facts.”

Not all the relevant facts, evidently. Writing in the April 2007 First Things (“Just War and Iraq Wars”), Weigel revisits his argument for preventive war, and predictably finds it sound. In doing so, however, he concedes that tactical and strategic mistakes were made. He is silent on whether those mistakes cast doubt on his claim that the president’s “charism” made him a better judge than religious leaders of the morality and wisdom of war.

Weigel has long been a critic of positions taken by the United States Conference of Catholic Bishops (USCCB) regarding the church’s just-war teaching. He is especially dismissive of the bishops’ insistence that just-war thinking begins with a “presumption against the use of force.” Weigel’s objection rests to some extent on an esoteric historical point. While the bishops concede that a presumption against the use of force was not a defining criterion of the traditional teaching, they nevertheless consider such a presumption to be a legitimate development of that teaching. In an age of nuclear weapons, the bishops reason, the consequences of armed conflict are exponentially more dangerous.

It is true that the moral responsibility of statesmen is different from that of bishops and ordinary Christians. Still, looking back at the many nuanced statements issued by the USCCB regarding the war in Iraq, it is hard not to conclude that the bishops’ charism, rather than the president’s, has better served the nation. As early as November 2002, the bishops wrote of their deep concern “about recent proposals to expand dramatically traditional limits on just cause to include preventive uses of military force.” Repeatedly, the conference expressed the gravest doubts about the moral justification for the Iraq invasion. The bishops also reiterated their support for the right of conscientious objection and selective conscientious objection. In a prescient February 2003 statement on the likely consequences of war, Archbishop Wilton D. Gregory, who was then president of the conference, warned that “a postwar Iraq would require a long-term commitment to reconstruction, humanitarian and refugee assistance, and establishment of a stable, democratic government at a time when the U.S. federal budget is overwhelmed by increased defense spending and the costs of war.”

As the war dragged on, the bishops recognized that “a new Iraq cannot be imposed by the United States or any other occupying power” and that “our nation has to confront both our limitations and responsibilities in the extremely complex social, political, and religious reality of post-Hussein Iraq.” When evidence emerged that the United States was torturing prisoners, the conference condemned the practice in no uncertain terms. And last year, the conference issued two papers on making a “responsible transition” in Iraq. “Our nation cannot afford a shrill and shallow debate that distorts reality and reduces the option to ‘cut and run’ versus ‘stay the course,’’’ wrote Bishop Thomas G. Wenski, chairman of the Committee on International Policy, in January 2006. Wenski argued that U.S. forces should leave “sooner rather than later,” and noted that the key to any transition will be greater regional and international support and participation in forging a settlement. In a November statement, the bishops endorsed the idea of benchmarks to measure progress, recognizing that it is Iraqis who ultimately must make peace among themselves. If the Iraqis fail to meet those benchmarks, the United States must reevaluate its presence in Iraq.

For a group that is supposed to lack the charism to make sound judgments about war and peace, the bishops have acquitted themselves far better than their critics.