SCOTUS: 6 Catholics, 3 Jews, Law, Scholasticism and Tradition

I read a comment[1] a few weeks ago on GetReligion.org attempting to explain why John Paul Stevens was the last Protestant in the U.S. Supreme Court which simply said that Catholics and Jews have a tradition of being immersed in law (Canon Law and Halakha respectively for Catholics and Jews as an example).

This struck me as interesting because at first glance it kind of makes sense.

Of course there is much more to why the current make-up of the U.S. Supreme Court, 6 Catholics, 2 Jews, and an Episcopalian, is as it is.[2]

But I thought it was an interesting enough topic to dive into.

Lisa Wangsness of the Boston Globe chimes in with her two cents worth [emphases mine]:

Evangelical Protestants have been slow to embrace, or to feel welcomed by, the elite law schools like Harvard and Yale that have become a veritable requirement for Supreme Court nominees. One reason for this, some scholars say, is because of an anti-intellectual strain within evangelicalism.

As Ronald Reagan would say, there you go again, pushing the liberal theory that Christians are stupid (at least Evangelical Protestants).

Lets get beyond these stereotypes done by liberals to Christians.

Catholics do have Sacred Tradition, Sacred Scripture, and the living Magisterium along with a very long and distinguished history of scholasticism in nearly all subjects.  In addition we have had our ecumenical councils where theologians, professors, and historians would engage in debate and dialogue to affirm Church teaching by pouring over ancient manuscripts and other evidence.  These ecumenical councils issued documents spawned from the direction of the Holy Spirit their exegesis. The most recent being those documents from Vatican II.

Not to mention Catholic colleges, seminaries, and thousands of study groups that dot the country arguing over the hermeneutics of these ancient manuscripts and conciliar documents.

But does this explain the high propensity of Catholics and Jews up for nomination for judicial appointments?

Protestants do have their colleges, seminaries, and Bible study groups, similar to those of Catholics.

One theory that is bandied about is that because Evangelical Protestants believe in the personal interpretation of the Bible, ie, sola scriptura[3], any documents, books, and treatises that have been issued in the past are of no consequence since sola scriptura pretty much leaves no room for tradition or an accumulation of knowledge to be drawn from.

Bear in mind that I am just brainstorming and wanting to see if a discussion can start in helping explain the reasons for the lack of Protestants in the U.S. Supreme Court.

Let’s not forget our elder brothers the Jews.

The Halakha is the collective body of Jewish religious law that contains everything from the 613 mitzvot to the present Talmudic Law.  From the old Sanhedrin to today’s yeshiva’s, Jews[4] have had a long history of scholasticism, especially in law (literally from the beginning of time).

Now there is a reason why Catholics and Jews are similar and that is because Catholics inherited Jewish customs and tradition.  Where Catholics and Jews begin to diverge was during the Council of Jerusalem in A.D. 49.

Another example of these similarities is the Chair of Moses, which was destroyed in A.D. 70, was inherited by Saint Peter, the first pope of Rome, called the Chair of Peter or cathedra.  Hence the long unbroken tradition of law from the beginning of time to Noahide Laws then with Mosaic Law and finally with the Holy Bible and all subsequent ecumenical councils.

So what do you all think?

_._

[1] Can’t find that comment, though I did read it.

[2] Ironic that people got all hot and bothered when the fourth and fifth nominees for the SCOTUS were Catholic’s thus over-representing Catholics in the Judicial branch.  But somehow the secularists are excited that the current nominee, Elena Kagan, a Jew, would make SCOTUS 1/3 Jewish.  But that’s another story for another post.

[3] For the Catholic view on sola scriptura go here.

[4] When I say Jews, I mean real practicing Jews, ie, Orthodox Judaism (like Hasidism), not Conservative nor Reform Judaism.

47 Responses to SCOTUS: 6 Catholics, 3 Jews, Law, Scholasticism and Tradition

  • The legalistic traditions would be the most obvious theory but I suspect that it’s too abstract to have this disparate an impact. Besides, sola scriptura is much closer to the originalism of the four conservative Catholic justices. The living Magisterium is more analogous to the living constitution that they reject.

    The anti-intellectual strain within evangelicalism makes sense. Part of it may also be that Catholics make more reliable conservative judges and are therefore more appealing Republican appointees but I bet Catholics are overrepresented in the general lawyer population as well.

    Maybe religion is actually hiding an ethnic cultural difference. The legal field was one of the few fields that was relatively tolerant of Jews which is at least partially why they are overrepresented. Maybe anti-Catholic or anti-immigrant sentiment drove the Irish, Italians, and now the Hispanics into law.

    Maybe religion is hiding a regional difference. Five of the justices are from New York, two from California, and one from New Jersey. New York and California are the two biggest lawyer markets. They also happen to have the largest Catholic and Jewish populations. I can’t speak for California, but every ambitious New Yorker wants to be either a lawyer or a banker (another field where Jews, and maybe Catholics, dominate).

    Maybe Catholics and Jews can’t be lumped together. Maybe Jews are overrepresented for historic reasons and Catholics for religious reasons.

    Protestants do have their colleges, seminaries, and Bible study groups, similar to those of Catholics.

    But their emphasis is very different. I’ve heard one Protestant accuse Catholics of being too mechanical in their religious studies.

    Ironic that people got all hot and bothered when the fourth and fifth nominees for the SCOTUS were Catholic’s thus over-representing Catholics in the Judicial branch. But somehow the secularists are excited that the current nominee, Elena Kagan, a Jew, would make SCOTUS 1/3 Jewish.

    They were hot and bothered because Roberts and Alito were conservative Catholics. They had no problem with Sotomayor.

  • Let’s get beyond liberals. Liberals only have insults and lies; and fabricated/imagined crises meant to “grease the skids” for their destructive policy “solutions.”

    If we don’t stop Obama and his horde of liberal idiots (I repeat myself) in congress, and soon the Judiciary, they will cause a degree of economic devastation from which the private sector may never recover.

    Then, they will have succeeeded in making us all serfs, which was their (the two or three that aren’t gays/lesbians/puppy-lovers/morons) plan all along.

  • I take issue with the notion that the conservative justices’ approach is similar to “sola scriptura” and that the “living Constitution” approach is analogous to the living Magisterium.

    Instead, I would say the two approaches to the Constitution are rather more like the difference between how a traditionalist Catholic and a Voice-of-the-Faithful Catholic view the Magisterium.

    Conservative jurisprudence does not reject development in the law; conservative jurisprudence recognizes that the world today is different from the world 200 years ago and that matters will arise that were completely outside the imagination of the Framers. However, conservative jurisprudence also recognizes that developments in the law (1) are better suited to be addressed by legislative bodies rather than courts, and (2) to the extent the courts must develop constitutional doctrine to meet modern challenges, the development must be (a) an organic extension of the rights and values traditionally held by society and (b) be bound to the text of the Constitution as originally enacted and intended by the Framers.

    Justice Scalia famously discussed this view in the Michael H. case, in which a putative father (from an extra-marital affair) sought to use the Court’s “substantive due process” jurisprudence (see, e.g., Griswold and Roe) to overturn a state’s codification of Mansfield’s Rule, which protects the children of a marriage from outside claims of paternity. Scalia, in his majority opinion, attempted to limit the extension of “substantive due process” to those instances where society had traditionally protected such rights:

    1. The § 621 presumption does not infringe upon the due process rights of a man wishing to establish his paternity of a child born to the wife of another man.

    […]

    (b) There is no merit to Michael’s substantive due process claim that he has a constitutionally protected “liberty” interest in the parental relationship he has established with Victoria, and that protection of Gerald’s and Carole’s marital union is an insufficient state interest to support termination of that relationship. Michael has failed to meet his burden of proving that his claimed “liberty” interest is one so deeply imbedded within society’s traditions as to be a fundamental right. Not only has he failed to demonstrate that the interest he seeks to vindicate has traditionally been accorded protection by society, but the common law presumption of legitimacy, and even modern statutory and decisional law, demonstrate that society has historically protected, and continues to protect, the marital family against the sort of claim Michael asserts.

    Scalia explains further:

    In an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the interest denominated as a “liberty” be “fundamental” (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society. [Footnote 2] As we have put it, the Due Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105 (1934) (Cardozo, J.). Our cases reflect “continual insistence upon respect for the teachings of history [and] solid recognition of the basic values that underlie our society. . . .” Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 501 (1965) (Harlan, J., concurring in judgment).

    This insistence that the asserted liberty interest be rooted in history and tradition is evident, as elsewhere, in our cases according constitutional protection to certain parental rights. Michael reads the landmark case of Stanley v. Illinois, 405 U. S. 645 (1972), and the subsequent cases of Quilloin v. Walcott, 434 U. S. 246 (1978), Caban v. Mohammed, 441 U. S. 380 (1979), and Lehr v. Robertson, 463 U. S. 248 (1983), as establishing that a liberty interest is created by biological fatherhood plus an established parental relationship — factors that exist in the present case as well. We think that distorts the rationale of those cases. As we view them, they rest not upon such isolated factors but upon the historic respect — indeed, sanctity would not be too strong a term — traditionally accorded to the relationships that develop within the unitary family. [Footnote 3] See Stanley, supra, at 405 U. S. 651; Quilloin, supra, at 434 U. S. 254-255; Caban, supra, at 441 U. S. 389; Lehr, supra, at 463 U. S. 261. In Stanley, for example, we forbade the destruction of such a family when, upon the death of the mother, the State had sought to remove children from the custody of a father who had lived with and supported them and their mother for 18 years. As Justice Powell stated for the plurality in Moore v. East Cleveland, supra, at 431 U. S. 503:

    “Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”

    Thus, the legal issue in the present case reduces to whether the relationship between persons in the situation of Michael and Victoria has been treated as a protected family unit under the historic practices of our society, or whether, on any other basis, it has been accorded special protection. We think it impossible to find that it has. In fact, quite to the contrary, our traditions have protected the marital family (Gerald, Carole, and the child they acknowledge to be theirs) against the sort of claim Michael asserts. [Footnote 4]…

    That’s hardly a “sola scriptura” approach to jurisprudence and, in fact, I would argue that Scalia was relying upon his own Catholic understanding of the Magisterium in formulating that approach.

  • Thanks, Jay, for beating me to it. I owe you.

  • Ditto what Mike said. I’ve written that comment before (although probably not as well).

  • Three comments:

    First, I would not dismiss the existence of an anti-intellectual strain within evangelical Protestantism as mere liberal rhetoric. Certainly there is some of that, but the anti-intellectualism in evangelical Protestantism is well documented, especially by scholars such as Mark Noll, who is himself an evangelical Protestant. It is a part of evangelical Protestantism that many adherents are putting aside, but its historical existence could be a factor.

    Second, we can’t ignore social trends. Mainline Protestantism has been declining in numbers and influence for some time. The lack of mainline Protestants that “percolate up” to the upper echelons of the law is a consequence of that. At the same time, Catholic numbers and influence increased during the same decades. Also, Catholics and Jews during the last century emphasized education, assimilation, and becoming part of the “establishment.” That too, had implications. I would expect the same to happen with evangelical Protestants in the decades to come.

    Third, both Jewish and Catholic teaching has not emphasized, as much as mainline Protestants, a radical separation of church/state and politics/religion. Mainline Protestants, some have argued, emphasized it so much that they made religion irrelevant in the public square.

  • It’s not a perfect fit but there are elements of originalism that more closely resemble sola scriptura. Sola scripturists would also agree that the world is different today. Jay, I don’t think anything you said is inconsistent with sola scriptura.

    It’s funny you mention Michael H. I was just rereading my notes on the case a few days ago. None of the justices objected to Scalia’s view to traditional rights. Brennan’s dissent also looks to traditional rights. But a majority didn’t join Scalia’s footnote 6 for a very different reason. I, along with most the justices, think he’s wrong in his application, if not his approach. Contrary to his assertion that broader classes are more susceptible to conflicting interpretations, Scalia’s approach allows judges to pick conflicting specific classes. Scalia puts Michael H. in the class of “cheating fathers.” One can also place him in the class of “biological fathers.”

  • No, Scalia does not place Michael H. in the class of “cheating fathers”; he places him in the class of those who society and the law don’t want breaking up intact families by challenging the paternity of the children within those families. He’s unwilling to create out of whole cloth a “fundamental right” to do something that society has not traditionally seen fit to give sanction.

    And while one may also place Michael H. in the class of “biological fathers”, that says absolutely nothing regarding the “fundamentalness” of his “right” to have Mansfield’s Rule struck down as unconstitutional. And that’s what’s at stake. The liberal would throw out a centuries old common law rule over some imagined “fundamental right” to claim the child of an intact marriage as one’s own. That’s not akin to a “development of doctrine” – that’s changing the rules to suit one’s own personal view of how the law SHOULD be and fits more in line with how the VOTF crowd view the Magisterium.

  • Furthermore, the reason the “sola scriptura” analogy is inapt is because it an ahistorical reading of how originalists have actually behaved on the Court.

    Protestants whose approach to religion is based on “sola scriptura” reject authority and tradition as having any sway over how they apply their Faith to their lives. They reject developments in doctrine (even while unconsciously accepting such developments as the Trinity and the compilation of the Bible itself). The “sola scriptura” mindset – especially when it is of the fundamentalist variety – is a back-to-the-basics approach with only the Bible and the Holy Spirit as a guide.

    The originalist, in contrast, doesn’t reject authority or tradition or developments in the law that have occurred in the intervening years since the founding. The originalist doesn’t seek to “refound” the American republic as it existed in 1787. In fact, the originalist approach to jurisprudence is actually quite limited in scope by comparison to the Protestant Reformation and the approach of the “sola scriptura” practitioner.

  • Jay,

    Protestants whose approach to religion is based on “sola scriptura” reject authority and tradition as having any sway over how they apply their Faith to their lives. They reject developments in doctrine (even while unconsciously accepting such developments as the Trinity and the compilation of the Bible itself). The “sola scriptura” mindset – especially when it is of the fundamentalist variety – is a back-to-the-basics approach with only the Bible and the Holy Spirit as a guide.

    Thanks for fleshing out what I said in one sentence.

    I’m no law expert nor a lawyer, but I too could see that sola scriptura was an impediment towards doctrinal development for Protestants.

    And with that, originalsim and sola scriptura have no similarities with the respect to doctrinal development.

    Also appreciated your first comment as well…

  • Finally, let’s be honest about why those Catholics opposed to Constitutional originalism try to stigmatize it with the taint of “sola scriptura”: they know that most Catholics, especially conservative ones, take a dim view of “sola scriptura” in the context of theology, so they use the analogy to paint Catholic constitutional originalists as unthinking (in relying on the same intellectually inferior practice as protestant fundamentalists) and/or hypocritical (in doing to the Constitution what they criticize the protestants for doing to Christianity).

    The problem, as I’ve noted above, is that the analogy is inapt. But it is inapt not only because it fails to describe what originalists actually believe and how they actually behave, but because it is a comparison of two completely different institutions established for two completely different reasons and under two completely different sets of circumstances.

  • Evangelical Protestants who take their faith seriously go to any law school they can find that’s conducive to their faith. Catholics just go to the highest-ranked school that will take them – even if that school is not particularly religious. Of course, I am speaking in general terms.

  • Jay, I see that you are anticipating in advance the charge of being trapped in a Calvinist (and very Protestant) dualism by virtue of defending originalism. But you cannot escape; in order for the intellectually cramped Calvinist-Catholic dualistic system to work, any disagreement must be described as an outgrowth of individualism/Calvinism/liberalism.

  • Evangelical Protestants who take their faith seriously go to any law school they can find that’s conducive to their faith. Catholics just go to the highest-ranked school that will take them – even if that school is not particularly religious. Of course, I am speaking in general terms.

    I am not sure how true that is. I have friends and co-workers who are evangelicals that went to Harvard Law, and the Christian (not Catholic) law student group at my school (t-10 or so) was fairly sizable and active. But, of course, these anecdotes don’t really add up to data. You could be right about the general trend.

  • I’d consider myself a Catholic originalist. Sola scriptura (or some weak version of it) can be an perfectly defensible way to interpret the Constitution but not Scripture.

    Originalists reject any develop of new doctrines not grounded in the law as understood at the time of its enactment. They accept tradition only up to the point of enactment. They do not accept the idea that later traditions that could not reasonably be anticipated, can add to the law. On the other hand, Catholics accept that later traditions can add to existing “law” in ways that could not reasonably have been anticipated.

    Even the process of development differs. Originalists reject abstract unifying doctrines and prefer to judge new situations as fitting or not fitting into specific laws or enumerated rights. Catholics, I would argue, work in the opposite direction. Starting with abstract unifying doctrines (e.g., dignity of man), then judging whether the situation falls within an exception (e.g., double effect).

    As for the Michael H. sidetrack, Jay, you demonstrate exactly why Scalia’s methodology is wanting (I’d like to note that this is a different argument than the one over originalism). I described Scalia’s classification of Michael H. as a “cheating father.” You described it as “someone trying to break up a stable family.” Which one are we supposed to use? You also dismissed the implications of classifying Michael H. as simply a “biological father.” Traditionally, biological fathers have rights over their biological children. An appeal to tradition doesn’t work here because both sides can, and did, argue it. If Scalia’s methodology is correct, it’s incomplete, at the very least.

  • Centinel, you wrote:

    Evangelical Protestants who take their faith seriously go to any law school they can find that’s conducive to their faith. Catholics just go to the highest-ranked school that will take them – even if that school is not particularly religious. Of course, I am speaking in general terms.

    That goes beyond generalization, friend. Generalization, philosophically, means abstracting a feature true of each instance of a class, e.g., “Houses have roofs.” Generalization, popularly speaking, means abstracting a feature true of most or even many instances of a class, e.g., “The students at Catholic University are Catholics.”

    What you’ve managed to do is pluck out of a bag of prejudices and biases a dazzling example of complete ignorance EXCEPT of perhaps one or two cases that you know, and a few more that you know of.

    I am close friends with a woman who, as an Evangelical, went to Yale Law School because it was “the highest-ranking school that would take” her, to use your words. Not too shabby. Granted, it’s not the University of Barbados, but I suppose Yale Law will do for her sort. She’s a Catholic now, though. Did you know that there are numerous law schools at Catholic universities bursting at the seams with… all sorts of people?

    Do you think it possible that Catholics might be serious about their faith and go to a law school conducive to it?

    Do you think it possible that an Evangelical might be serious about his faith and yet go to an ungodly school bearing in mind that it is not the law school’s job to nurture his faith, and that he will continue to seek spiritual nourishment through the means he always has – prayer, reading the scriptures, attending a good church?

    C’mon. Your “observation” was entire facile.

  • “Traditionally, biological fathers have rights over their biological children.”

    Not biological fathers who aren’t married to the child’s mother. That’s a very recent development.

  • And I’m sure you’ll say that my last comment illustrates your point about classifications.

    But there will always be classifications when talking about defining rights under the Consitition. The key is to find the classification that does the least amount of damage to the constitutional order, and this is done by limiting the interference of the judiciary into the democratic process by defining the “fundamental right” narrowly enough as not to remove a broad category of activities from democratic oversight (not to mention creating out of whole cloth “rights” that have no basis in the text of the Constitution).

    Scalia’s appeal to tradition is to look at the behavior that society has traditionally valued and protected and determine whether the particular case before the Court meets – with specificity – the activity society has sought to protect.

    The liberal will look at “tradition” and try to broadly define the activity that is “fundamental” to ordered liberty so as to include as much activity as possible and remove it from the democratic process. Thus, Brennan et al looked at Michael H. as a “biological father”, and relying on some very recent precedent (and ignoring other recent precedent – i.e. that “biological fathers” have very few if any rights when abortion and birth control are at issue), tried to make the argument that he had a “fundamental right” to interfere in the inner workings and relationships of an intact family unit.

    What’s “traditional” about that? Nothing. Maintaining Mansfield’s Rule was based on tradition – the tradition of protecting the family, as society has sought to do for generations. The Court’s “fundamental rights” jurisprudence – of very recent vintage – regarding a biological father’s “reproductive rights”, not so much.

  • While not remotely an expert on law, the sociological/historical aspect interests me in regards to biological fathers’ right. It seems to me that the accurate characterization would be that in Western Culture, a biological father can assert paternity rights over illegitimate offspring by effectively “legitimizing” or recognizing them. This, however, assumes that the illegitimate offspring are otherwise simply “fatherless” and unacknowledged.

    The rights of the pater familias as a husband typically include having paternal rights over all children he chooses to acknowledge. So if his wife bears a child which is not, in fact, his, he can effectively make the child his by acknowledging the child as his regardless of actual paternity.

    The idea that a biological father could assert paternity rights over a child he fathered on a married women over the objections of her husband (who is willing to raise the child as his own) would be distinctly un-traditional.

  • Darwin,

    You’re right. It IS distinctly un-traditional. And for over 200 years, under Lord Mansfield’s Rule, such claims cannot be heard.

    Okay, I realize I’ve dominated this thread, so just one last thing on the classifications in Michael H. and how they relate to “tradition”:

    As Restrained Radical notes, both Scalia and Brennan appealed to “tradition” in reaching opposite conclusions in the case. However, a closer examination of the arguments and what respective “tradition” was being sought to be preserved by the opposing Justices, will reveal that one of the Justices was ACTUALLY concerned with remaining faithful to and preserving an established tradition, while the other Justice’s feigned appeal to “tradition” was a complete load of BS from one of the most successful bu11$h**tters who ever sat on the Supreme Court.

    Let’s start off with the fact that the rights of “biological fathers” – the “tradition” to which Justice Brennan appealed – are, as I noted above, a recent development in the law, and there is no long-standing “tradition” of “biological fathers” having legal rights over their offspring outside the context of the marital relationship. Even the parental rights of divorcing parents have always been based on the fact that the parents were married in the first place.

    So, let’s dispense with Brennan’s nonsensical claim that he was appealing to “tradition” and cut right to the chase. Were one to follow his constitutional jurisprudence to its logical conclusion, here’s Bill Brennan’s take on the “rights” of biological fathers:

    * A “biological father” has absolutely NO LEGAL RIGHTS to protect the life of his child should the mother choose to abort the child; HOWEVER …

    * A “biological father” has a “fundamental constitutional right” to interfere in an intact marital family relationship by asserting paternity over a child born inside that marriage should the mother choose to raise the child with her husband.

    * A “biological father” has a “fundamental constitutional right” that overrides an over-200-year-old common law rule – a common law rule known to and explicitly accepted by the drafters of the Constitution – meant to protect marriages from outside attack and children from bastardization.

    That’s Bill Brennan’s definition of “tradition”.

    On the other hand, under Justice Scalia’s approach, here is the state of the law:

    * an over-200-year-old common law rule that was on the books at the time of this Nation’s founding is preserved;

    * the sanctity of the marital family unit is preserved from outside interference by claims from a stanger to that marriage that he is, in fact, the father of a child born to that marriage;

    * the original intent and meaning of the text of the Constitution is preserved from the violence done to the constitutional order whenever a newly created “fundamental right” is used to strike down as “unconstitutional” a law that was fully known to and explicitly acctepted by those who drafted the Constitution.

    Now, which one of those approaches is TRULY concerned with tradition?

  • Personally, I always thought the tradition of offering sympathy to orphans should have helped the Menendez brothers

    ;-)

  • Jay, your putative domination of this thread has enriched it, and is greatly appreciated at least by me.

  • Agreed, I’ve enjoyed your explanation on this stuff, Jay.

  • I spend the day in Bankruptcy Court and Jay leaves me nothing to say in regard to Constitutional interpretation. Rats! Ah well, I will merely say ditto to what Jay wrote and what Scalia says below:

  • Donald,

    I liked his Chestertonian quote:

    “Some worth doing, is worth doing terribly.”

    Or something to that effect.

  • I should’ve stated this early but I don’t necessarily disagree with the outcome of Michael H. And I do think originalism is the proper method of analysis (while I still maintain this is closer to sola scriptura). I only take issue with Scalia’s method of abstraction outlined in footnote 6. He defines classes that need not be defined in that way.

    Jay & Darwin, it all depends on how you’re defining the tradition and the specific case. The children of a married woman have traditionally been presumed to be the biological children of the husband. Is Lord Mansfield’s Rule designed to protect the husband or the biological father? In the absence of DNA testing, it would seem that it protects the biological father (usually the husband) from spurious paternity claims. Therefore, it appears tradition protects the rights of the biological father. Modern technology has eliminated the need for blunt evidentiary rules.

    Again, I’m not saying that’s right. Only that the very existence of what I think is an alternative reasonable interpretation, undercuts Scalia’s approach.

  • Don, that was a great vid. It would be interesting to see a liberal originalist on the court. Lawrence Lessig, a liberal and a broad originalist, says Kagan thinks as he does. I doubt it but if true, not only would Kagan be the most influential justice, it would also alter the course of American jurisprudence. I’ve believed that the best kind of judicial nominee would be a liberal pro-lifer. Perhaps even more important than overturning Roe is changing the way liberals view abortion.

  • “Is Lord Mansfield’s Rule designed to protect the husband or the biological father? In the absence of DNA testing, it would seem that it protects the biological father (usually the husband) from spurious paternity claims. Therefore, it appears tradition protects the rights of the biological father. Modern technology has eliminated the need for blunt evidentiary rules.”

    I suppose it provides an alternative interpretation to Scalia’s, but it is one that I believe to be ahistorical.

    The historical record will bear out that Lord Mansfield was primarily concerned with the children of marriages not being made bastards, which is a matter wholly unconcerned with determining actual biological paternity. In fact, it was an objective that was often in direct conflict with determining such.

    Preserving intact marital family units from such challenges was not for the purpose of ensuring that the husband’s factual biological paternity was protected from spurious outside claims, but rather to ensure that children were not delegitimized. For that reason, the law created an irrebuttable presumption that the children of a married woman were the legitimate children of her husband.

  • I suppose, from a sociological point of view, a lot has to do with how you interpret the purpose of established cultural norms. It seems to me that the purpose would clearly be that a pater familias be able to determine who he wants to call his children. If he want to acknowledge children he had by a woman other than his wife, he can. If he want to refuse to acknowledge those children, he can. And when his wife bears children he can either acknowledge them, or repudiate his wife and deny them.

    All this sounds rather negative and “patriarchal”, but it also has the effect of making the direct and extended family strong against outside assaults. Good or bad, though, I think it’s hard to deny that it’s “traditional”.

  • “I doubt it but if true, not only would Kagan be the most influential justice, it would also alter the course of American jurisprudence. I’ve believed that the best kind of judicial nominee would be a liberal pro-lifer.”

    I doubt restrainedradical that Kagan will be anything but an orthodox political liberal on the bench. However, the fact that she has no judicial experience on the bench should give her backers pause. Felix Frankfurter, the great advocate of judicial restraint, was a fairly conventional political liberal before he was appointed to the Supreme Court by FDR without judicial experience. Things can look quite differently after one dons the black robe, especially with a life time appointment, and Kagan, perhaps, could end up surprising everyone.

  • I would be astonished if Kagan does not prove to be “anything but an orthodox political liberal” cleverly legislating from the bench whey “necessary.” But I’m prepared to be astonished, and certainly hope that I am.

    In any event. I hope the confirmation process is a smooth one. I’m all for hardball politics, but Kagan is qualified and that should be the end of it. The Dems viciously changed the rules with Bork, and I believe that the temperament within the Senate has never been the same. I’d like to see the Republicans avoid scoring political and polemical points and just plain do the right thing.

  • I agree Mike that the Kagan nomination is not the one for the Republicans to put up a fight on, but one of the main reasons why the Democrats routinely engage in scorched earth tactics in regard to Republican judicial nominees is because the Republicans routinely fail to do the same to Democrat nominees.

  • Fair enough, Don, but it is worth remembering that both Roberts and Alito got through without the Dems resorting to scorched earth practices, which is not to say that they behaved perfectly. I’d rather try to ratchet the practices back to how they are supposed to work. I acknowledge that it is a judgment call as to whether exhibiting good behavior or returning bad behavior is the most effective way to do that.

  • In regard to Alito Mike the Democrats tried but failed to filibuster his nomination. The final vote for his confirmation was 58-42 which is astounding if one of the chief criteria is supposed to be judicial comptence.

    Obama of course voted against confirmation for both Roberts and Alito, two of the best qualified jurists ever nominated to the Supreme Court.

  • Forgot that, Don, thanks. I’d still support Kagan’s nomination, but would also score points by emphasizing the contrast between her treatment and that of Alito, and get lots of digs against Obama for voting against Alito and Roberts.

  • Roberts was confirmed 78–22. He got far more Democratic votes than Sotomayor got Republican votes. Alito had the misfortune of being second. Kagan has the same problem.

  • Wow. Such deep arguments!

    Still, I think a lot of folks are overthinking this situation. A president seeking a pro-life perspective on the high court appoints a Catholic. Another president seeking some pro-life cover also appoints a Catholic. Presidents who seek a reliably pro-abortion leftist or wish to appease leftist elements of their party often appoint a Jew.

  • Restrained Radical,

    There’s no comparison, democrats are far more emotional and vindictive when it comes to voting against well-qualified judges that happen to seem conservative.

    Case in point, Robert Bork who lost the nomination 42-58.

  • The Bork confirmation process was unprecedented. It broke with longstanding Senate tradition, and frankly the Senate has not been the same since. The Dems broke the rules and lied shamelesslessly while doing it. Mutual rancor, payback, and distrust have been the order of the day since.

    While not unopinionated, I am not given to immoderate commentary. In fact I sign my real name as a matter of self-discipline. But let there be no misunderstanding or doubt: Joe Biden made his bones in the Bork hearings and behaved like a consummate dirtbag. I expected such dishonest behavior from the cowardly Senator from Massachusetts, but this was when Biden showed his true character colors.

    Finally, let’s be clear. When the Left decides to play hard ball, you can ususally count on the subtext being their sacrament of abortion. It started with Bork and Palin has been the most recent manifestation.

  • Bork and Thomas are outliners. People like Bork with long controversial paper trails don’t get nominated anymore. And Thomas had to deal with Anita Hill. I don’t think either party has a monopoly on outrage. As I noted before, Roberts had an easier confirmation than Sotomayor who in turn will have had an easier confirmation than Kagan. I predict Kagan’s confirmation to be similar to Alito’s. Four Democrats voted for Alito. I predict 2 or 3 Republicans will vote for Kagan (Snowe, Collins, and maybe Brown).

  • It’s a straw man.

    Bork had the most difficult.

    You can continue to apologize for your democratic party, but facts are facts.

  • While, I do not disagree with the overall thesis expressed herein. I find the characterization of Reform and Hasidic Judaism to be off the mark. I contend that the divisions within Judaism that they represent a division with Judaism but that these division were the result not of dogmatic differences.

    Rather I view the divisions within Judaism as being similar to the differences that exist between religious orders with Catholicism.

    In the sense that each religious order agrees on the truth of the dogma espoused by universal church, their missions differ,and as a result there may exist minor differences within their devotions and practice.

  • Nathan Zimmermann,

    I would like to default to your position because I know very little about Judaism.

    But when I see “conservative” and “reform” Jews advocate for the death of the unborn in absolute violation of the Ten Commandments and then I see “orthodox” Jews express identical views with Catholics and stand up for the unborn, then your analogy does not seem to fit that of Catholic religious orders.

    Catholic religious orders differ in mission, but adhere completely to the teachings of the Church.

    I don’t believe your analogy falls into that category with all due respect.

  • Mr. Edwards,

    I based my analogy upon my experiences and interactions with the aforementioned communities within my native city where even the conservative and reform Jews tend to be more conservative and pro-life.

  • If the Republicans wish to Bork a nominee Solicitor General Kagan’s nomination may be the best opportunity. If President Obama had nominated Judge Merrick Garland, the ability of the Republicans to Bork the nominee would have proved less tenable because, Judge Garland’ nomination was openly advocated by Senator Hatch.

    As addendum to my two previous posts, and to throw a fox into a hen-house. While there is no doubt of the universal church on the subject of abortion and euthanasia, eugenics and Darwinism.

    It should be noted that there existed a split with the church on the subject of eugenics and Darwinism during the 1920s and 1930’s as is evident in the writings of Rev. Hermann Muckermann, the elder brother of Rev. Friederich Muckermann SJ.

  • Nathan:
    There has never been a split regarding either Darwinism or eugenics in Church teaching properly understood The fact that some Catholic priests and theologians have favored abortion rights, for instance (which of course is still the case) does not in any way impair the fact that the Magisterium has remained consistent, even as it develops.
    I have countless Jewish friends. Sadly I know none who consider themselves of the Reform stripe who favor laws forbidding abortions, even though I know many who claim they themselves would not abort a child.

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