U.S. Supreme Court
To ask some questions is to answer them, and via Commonweal, I see that UCLA history professor emeritus Joyce Appleby has penned a lovely exercise in anti-Catholicism entitled, Should Catholic Justices Recuse Selves On Certain Cases?. Here is an excerpt:
But because of the Catholic Church’s active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants…
…Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?
Imagine a white male conservative making the same comments that Judge Sonia Sotomayor made:
A wise White man with his experiences would more often than not reach a better conclusion than a Latina female,”
The mainstream media (old media) would have a field day recounting how racist Republicans are. It would be nonstop media coverage not seen since Trent Lott’s infamous statements.
Now here are Judge Sonia Sotomayor’s comments. Keep in mind that when she said these comments that she was dead serious:
A wise Latina woman with her experiences would more often than not reach a better conclusion than a white male,”
The protests around Obama’s honorary degree from Notre Dame University had many of the more politically progressive Catholic voices complaining that pro-life advocates had moved into a practice of loudly protesting absolutely everything that seemed vaguely positive for Obama without regard for whether it was an important issue. As someone who cares about the integrity of Catholic education, I think they were wrong in regards to Notre Dame’s decision to give Obama an honorary law degree — it was a big deal and it was appropriate to decry the choice.
However, I think that Jay Anderson and Feddie are right in making the case that the nomination of Sonia Sotomayor to the Supreme Court is not something that pro-life groups should be knocking themselves out to contest.
Given how early it is in his presidency and how high his political approval ratings are, Obama could have decided to spend political capital and put a top notch, liberal intellectual ideologue on the court who could work to shift the balance strongly to the left. Instead, he made the fairly bland, identify politics “first” pick which had been conventional wisdom in Democratic circles for some time, despite the doubts of those who wanted to see a more intellectual and ideological pick. As pro-lifers, we certainly don’t need to praise this pick. She is doubtless pro-choice and will work to support Roe and other Culture of Death decisions. But we also don’t need to pick this to raise a stink over. She will be confirmed regardless, given the composition of the senate, and if we can both conserve our political energy and provide Obama with some positive reinforcement that sticking to bland conventional wisdom candidates will be rewarded with a lack of partisan rancor, so much the better.
Again, I’m not saying that pro-lifers need to praise or support Sotomayor, but Obama could have stuck it to us a lot worse — and since kicking a fuss will achieve nothing other than encouraging the administration to play only to their base next time with a strictly ideological pick (and win the pro-life movement more of a reputation for constant shrillness) this would be a good time for us to hold our fire and concentrate on other things, like the next crop of pro-life candidates.
Doug Kmiec has a rather bizarre article up at America entitled The Case For Empathy: Why a Much-Maligned Value Is a Crucial Qualification for the Supreme Court. If the article is any indication, I suppose we should be thankful Obama didn’t make any off-hand remarks suggesting ‘creativity’ or ‘imagination’ were traits he would look for in a potential Supreme Court justice, if only because it might have lead to more essays like this one. After some preliminary gushing about, you guessed it, empathy, Kmiec explains what an empathetic justice would accomplish:
To do this, it is possible that [Obama] will mine for legal talent in unusual places, but it is more likely he will attempt to find a nominee with appellate court experience whose skill set also shows the capability of challenging methods of interpretation that otherwise wouldn’t give empathy the time of day. If Obama succeeds even with this more limited challenge,he will have exploded the notion that swapping out a Souter for a new, most likely younger and intellectually energetic, justice is without effect.
With the announced retirement of Supreme Court Justice David Souter President Obama wasted no time in addressing the issue of what he’s looking for to fill this vacancy. In so many words he clearly stated his desire for an activist judge with an eye towards reengineering America [emphasis and comments mine].
“It is also about how our laws affect the daily realities of people’s lives [meaning he wants a Justice who holds fast to the Living Constitution Theory,ie, an activist judge finding invisible law where none existed], whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”
The following excerpt clearly reveals President Obama’s contempt for legislative history in effect eliminating a potential nominee that adheres to the theory of original intent.
“I will seek someone who understands that justice is not about some abstract legal theory or footnote in a casebook.”
One thing is for sure, it will be an extremist liberal and pro-abortion nominee.
The Cranky Conservative has two first rate posts on his site here on what he regards to be the ten worst US Supreme Court decisions of all time. Having read hundreds of Supreme Court decisions, I have to salute Cranky for narrowing them down to ten. So many appalling decisions to choose from!
Hattip to the ever eagle eyed Jay Anderson at Pro Ecclesia. Justice Antonin Scalia on stare decisis and Roe. By the way, Scalia’s low estimate of Roe as a legal opinion is pretty nearly universal in the legal world. Liberal attorneys and judges, even though they support abortion on demand, will frequently agree in private, and sometimes in public, that Roe was a shoddy piece of legal work, and that Harry Blackmun, the author of Roe, was a poor excuse for a jurist. This of course does not prevent them from supporting Roe since they approve of the result, but it does mean that all of the many cases following Roe are based on an intellectually, and of course constitutionally, rotten foundation. We can see this in the opinions that strain to make sense of Roe, which, as Judge Bork famously noted, is completely devoid of legal argument.