Wednesday, August 03, 2005

Is Judge Roberts a "Serious Catholic"?

Hat tip: Professor Bainbridge

Blogger David Giacalone thinks that

...we should be asking John Roberts if he considers himself a "Serious Catholic." More specifically, does he subscribe to the principles laid out in the "Voter's Guide for Serious Catholics," that was widely read and followed by the most devout of the Faithful during the 2004 Election. (prior post) If he does, we need to ask Judge Roberts whether he believes those principles and requirements to be applicable to the actions of a Justice of the United States Supreme Court. If he won't answer or answers in the negative, the rest of us -- as lawyers and citizens -- are surely allowed to draw our own analogies and conclusions.
Professor Bainbridge responds:

I think these are legitimate questions deserving a fair answer. (More precisely, I think David's question is not the right one but is in the neighborhood of the right question.)

I'm also inclined to believe that the Senate's advise and consent function goes beyond a nominee's bare qualifications to include evaluation of the nominee's judicial philosophy. Certainly, if I were a Senator, I would want some assurance that the nominee is an originalist and strict constructionist!

As David Giaclone correctly observes, the Roman Catholic Church does instruct its members on their role in the public square. The relevant document is not the Voter's Guide to which David relies, of course, but rather the Vatican's Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life, which is the most recent authoritative Church statement on these issues. It states in pertinent part:

When political activity comes up against moral principles that do not admit of exception, compromise or derogation, the Catholic commitment becomes more evident and laden with responsibility. In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person.

Note the italicized phrase - political activity. This is a significant qualification, because the Church distinguishes between formal and material cooperation with evil.

I said earlier that David's question was not the right one but was in the neighborhood of the right question... If I were a Senator, I would ask Judge Roberts the following questions:

1. Do you believe that a judge should recuse himself if his participation in a particular case would constitute formal cooperation with evil?

2. Would you recuse yourself under such circumstances?

I'm inclined to think that one should not ask Judge Roberts whether he believes reviewing death penalty cases would constitute formal cooperation with evil (or the dame re abortion etc.). Even hot button constitutional issues are often highly fact specific. It would be unfair and unworkable to ask a judge to prejudge every possible variant of every issue that might come up in a long career.

My Comments:
Professor Bainbridge's suggestion sounds like a reasonable line of questioning to me, especially in light of the fact that it would not specifically reference Judge Roberts' Roman Catholicism or his "deeply held religious beliefs".

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At 8/03/2005 1:47 PM, Anonymous Anonymous said...

"Note the italicized phrase - political activity. This is a significant qualification, because the Church distinguishes between formal and material cooperation with evil."

I think Bainbridge is confused about formal cooperation and material cooperation. Formal cooperation is always sinful. But material cooperation (where one does not share the evil intent) is also sinful and therefore impermissible if it is proximate to the evil. This is not always easy to determine.

The reason the phrase "political activity" should be italicized is ecause judges are, or are supposed to be, non-political. Declaring that the Constitution says nothing about abortion or homosexuality is not a political action and thus there is no cooperation with evil. Just as a policeman does not get to make law, neither does a judge.

Nevertheless, a judge (or a policeman or anyone) can still be culpable for a sin if he materially cooperates with that evil. But as Justice Scalia explains, those circumstances for a judge are currently somewhat rare and are determined by examining the judge's order with the proximity to the evil.

For example, it is likely that a judge impermissibly and materially cooperates with evil if he orders that a minor may obtain an abortion without her parents' consent. I would also argue that if a Supreme Court Justice invented a right to abortion out of wholecloth, that would also likely constitute impermissible material cooperation and perhaps even formal cooperation (Justice Kennedy, are you writing this down?). In such an instance, a judge is ignoring his role of judge and is merely acting as a legislator. Accordingly, his actions should be analyzed like a legislators'.

At 8/03/2005 3:03 PM, Blogger Pro Ecclesia said...

Excellent points, Boethius!

At 8/03/2005 6:44 PM, Anonymous Anonymous said...

I have now read all of Bainbridge's post and I realize that Bainbridge is not confused about formal and material cooperation. He clearly understands the concepts. Just thought I should clear that up, lest anyone think less of Professor Bainbridge.

At 8/03/2005 6:47 PM, Blogger Pro Ecclesia said...

I apologize if my excerpting caused the confusion.


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