A Catholic Justice Faces Confirmation

From the National Catholic Register:

COMMENTARY & OPINION
by MARK STRICHERZ

Judge Roberts should take a middle ground on the Catholic issue.

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Roberts should walk away from the path advocated by [Illinois Senator Dick] Durbin: that his judicial philosophy ought to serve only man. And he ought to shun the road implied by [Oklahoma Senator Tom] Coburn: that his rulings should serve only God.

As much as possible, Roberts must serve God and man.

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What’s more, the Church teaches that prudence is one of the four cardinal virtues. According to the Catechism, prudence is “not be confused with timidity or fear, nor with duplicity or dissimulation.” Rather, it states, prudence “disposes practical reason to discern our true good in every circumstance and to choose the right means of achieving it.”

Taking the middle path also honors and complies with the Constitution. In our form of government, the chain of command is clear: Citizens elect representatives. The representatives make laws. And the judges interpret whether the laws adhere to the Constitution.

Although that principle sounds elementary, it is violated routinely. Take the Supreme Court’s twin 1973 decisions in Roe v. Wade and Doe v. Bolton, the rulings that established a uniform “right” to human abortion. In those cases, seven justices junked the Constitution altogether. Instead of acting as judges, they acted as legislators.

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In arguing for a middle ground on the religious issue, I realize that my position is inconsistent with the natural law argument. Charles Rice, an emeritus professor of law at the University of Notre Dame, has pointed out that our constitutional model of legal reasoning is positivist — that is, legislators, rather than God, determines what is right and wrong. Moreover, Rice argues, even if Roe and Doe were overturned, the unborn would still be non-persons under the law.

“If your life is subject to extinction at the discretion of a legislative body or of somebody else,” he concluded, “you are a nonperson.”

Which is true, but Rice’s argument finds no basis in the Constitution. Granted, the divine law supersedes man-made law. Yet his reasoning is awfully imprudent when applied to Roberts’ testimony before the Senate. It requires Americans to scrap their system of government and replace it. It is fair to conclude that Americans will not be doing so anytime soon.

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... if Roberts does contend at his confirmation hearings that he separates his personal and legal philosophies, his statement could scandalize the faithful. He would be implying that his legal decisions take no account of God or Church teaching.

Of course, Roberts might believe personally that God comes before man and professionally that he can serve both. But it’s fair to conclude that he will leave the impression that he considers only man.

Such an impression might be good for the pro-life movement. I suspect Roberts would vote to overturn Roe and Doe. But he would be the opposite of St. Thomas More, the Lord Chancellor of England who in the 1530s rejected the request of King Henry VIII to condone the divorce of his wife. On the scaffold, More’s famous last words were, “The King’s good servant, but God’s first.”

If he refused to say the same, Roberts would save his neck but lose his soul.


Mark Stricherz, a writer living in Washington, D.C., is working on a book about how secular, educated elites took over the Democratic Party from Catholics and working-class whites.