Catholic Judges, the U.S. Constitution and Natural Law

(Hat tip: Rick Garnett at Mirror of Justice)

Zenit News Service has posted an interview conducted with Pepperdine University law professor Douglas Kmiec regarding the nomination of Judge John Roberts to the U.S. Supreme Court:

MALIBU, California, AUG. 29, 2005 (Zenit.org).- The nomination of Judge John Roberts, a Catholic, to the U.S. Supreme Court has turned the spotlight on the question of the interplay between religion and the law.

Douglas Kmiec, the Caruso Family chair and professor of constitutional law at Pepperdine University of Law and co-author of "The American Constitutional Order: History, Cases and Philosophy" (LexisNexis), shared with ZENIT the appropriateness of the U.S. bishops' involvement in the confirmation process, as well as the importance of the natural law tradition for prospective Supreme Court justices.

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Q: What role should a judge's faith and moral beliefs play in his or her role as a nonpartisan adjudicator?

Kmiec: The Constitution puts religious belief off-limits for selection or qualification. It states in Article VI: "No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Religious belief is necessarily off-limits in adjudication.

Q: Can a Catholic judge in good conscience strike down laws restricting abortion that he or she believes are unconstitutional? What about applying unjust laws? What should a judge do in the case of a moral conflict?

Kmiec: As a matter of formal logic, it must be readily admitted that no person in or out of office can set himself or herself above the divine law. Yet, repeatedly and circumspectly, the Church's teaching is directed at "elected officials" or those casting "a legislative vote."

So neither John Kerry nor Ted Kennedy, for example, should feign surprise when they are called upon by the Church to use their persuasive gifts to legislatively reduce the incidence of abortion, and certainly not to be its propagandists.

So, too, it was entirely appropriate for Bishop Skylstad to write President Bush, an elected official, to urge policies that coincide with not only Catholic belief, but also -- when one examines the policies discussed in his letter -- truly universal manifestations of love of neighbor.

Nowhere, however, does the Church formally instruct judges to act outside the bounds of their judicial office to legislate from the bench. The Church exhibits great respect for the separation of powers, even as the justices themselves have been less than faithfully observant of this constitutional building-block.

Here, the Church is following in the instruction of St. Thomas Aquinas, who argued "that all should have some part in the government; for in this way peace is preserved among the people, and all are pleased with such a disposition of things and maintain it."

Of course, for over 30 years there has been great displeasure over Roe v. Wade for, among other reasons, its dishonoring of the democratic choices of the people.

So, while Church leaders are well within their rights as citizens to point out in public statement or amicus brief how they believe that a proper understanding of law does not support abortion on demand, a Catholic judge may be part of a judicial system that includes Roe.

In ruling on such matters, a judge does not become morally complicit in the underlying act or share in its intent. If the question is: Does John Roberts have a specific Catholic duty on the bench to restrain abortion? -- Justice Scalia has given the apt answer: "A judge ... bears no moral guilt for the laws society has failed to enact."

In actuality, given its dubious legal origin, the advocates of abortion on demand may be more concerned if the day is nearing when the Supreme Court will return to the separation of powers and follow the law of the Constitution as written -- an obligation binding upon all judges, Catholic or not.

[Full interview]