From Democrats’ reaction to Sotomayor’s Catholicism reflects double standard – WSJ.com:
If Ms. Sotomayor is confirmed there will be six Catholics on the Court — a higher percentage than almost any Notre Dame starting lineup of the past three decades. It’s also true that notwithstanding a few scattered references to this fact, for the most part the judge’s religion has been greeted, as a USA Today headline put it, with a “yawn.”
How different from just a few years ago. Back when the nominee was Sam Alito, talk was about the “fifth Catholic” on the bench. Eleanor Smeal, president of the Feminist Majority, complained that “with Alito, the majority of the Court would be Roman Catholics.” . . .[The column goes on to describe the reaction to the religious beliefs of John Roberts and other Catholic jurists.]
It’s possible, of course, that Democrats and their allies in the media and activist community no longer regard Catholics with the suspicion they did back when President George W. Bush’s nominees were up for consideration. More likely, the relatively soft reaction to Ms. Sotomayor’s Catholicism is because of a calculation that when it comes to hot-button issues such as abortion or gay marriage, she doesn’t really believe what her church teaches.
Robert George, McCormick Professor of Jurisprudence at Princeton, says the Sotomayor hearings highlight a glaring double standard about how the Catholicism of judicial nominees is treated — and the great irony this treatment exposes.
“According to one theory of jurisprudence,” says Mr. George, “the judge may not bring his own moral beliefs or personal feelings to bear on his rulings on what the law is. This is the view held by people like Scalia and Alito and Roberts.”
This means that a judge who is personally pro-life can uphold a pro-choice law — and a judge who is personally pro-choice can uphold a pro-life law. What matters is the law, not the personal feelings. When judges follow this path, they take some of the heat out of culture wars. That’s because those who want to change the law — pro-life or pro-choice — have to do it the way our Founders intended: through their elected representatives.
“The other theory of jurisprudence,” the professor told me, “holds that the judge has a responsibility to bring his or her moral beliefs to cases. This is famously defended by scholars such as Ronald Dworkin, and practiced by judges such as William Brennan and John Paul Stevens.”
“Among the many problems with this view is that it leads inexorably to the politicization of the judicial process. If someone expects us to accept this theory as a legitimate judicial philosophy, then he or she has to be prepared to answer questions about what his or her moral beliefs or personal feelings are — and where they come from.”
“Yet here’s the irony. The same people who feel no compunction in trying to use the Catholicism of an Alito or Pryor to raise suspicions about their suitability then cry foul when anyone demands to know the basis of the moral convictions and personal feelings of someone that a liberal Democratic president is trying to place on the Supreme Court.”
So what do you think of the notion of following the law despite one’s personal beliefs?
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“So what do you think of the notion of following the law despite one’s personal beliefs?”
This is done, and properly so all the time. there are judges who are appalled and some of the results of the 3 strike laws and mandatory sentencing.
What they do is they follow the law, and in their opinions they are very very verbal about their opposition to those laws.
I could easily see a justice voting pro or against abortion and then in their opínion decrying the very fact that they felt compelled to do so. Yes it means that innocents will die, but being congress or the executive branch is not their charge.
This respect for constitutional roles is happening right now. President Obama is against “don´t ask, don´t tell”. he COULD overturn this by executive order or suspend it, but it exists because of a law congress passed, so he is pushing congress to reverse the law. This is supported now by a majority of the military and at west point. This same thing is also happening for the antifederalist DOMA (defense of marriage act) statute.
So what do you think of the notion of following the law despite one’s personal beliefs?
Also known as rule of law…
This post does, however, raise further questions. Why is it that Catholics, rather than Protestants, keep getting so many appointments (especially recently)?
A Judge is to make decisions based upon the Constition and other laws not on personal preferences. The point is for justice to be blind and impartial. Once you stick your nose into the decision it becomes impartial and advances policy.
Sotomayor ducked a question by Tom Coburn about aborting a 38-week child with spina bifida. Sen. Grassley followed up with the observation that she calls Roe “settled law” but dodged Coburn’s question. I’m disappointed that there isn’t more coverage of the fact that one of those arrested at the hearings is Norma McCorvey.
Nemo the Catholics are being appointed more than Protestants due to their grounding in natural law. Most Protestants are indifferent when it comes to doctrine and exegesis. They employ the same post-modernism method that cultural liberals do when it comes to correct teaching. “That’s your interpretation” As if there, was infinite amount of interpretations. They ignore that the Bible interprets itself. Christians should only confess it. Thus, there is concern with Protestant judges that they are fickle and may easily change their position.
Tray,
I think that’s it exactly. The Protestants/Evangelicals don’t have a theory of law, and are thus more are more inclined to take the “follow their personal beliefs” (which makes their claims about judicial activism ring somewhat hollow).
Yes, Trey. I was also going to add that many of the Catholics have been given an excellent classical education, making them more inclined to enter the field of law than those who had an inferior education.
Sorry guys, but the “N” is too small to generalize about why so many Roman Catholics currently on the USSC.
Now, if RCs also predominated at the appellate level and the level of the federal district courts (and state-level data would be pertinent as well), then I’d think that there was an interesting “why” question.
Also, as is well known, one problem with natural-law theories is that you can trump an assertion of natural law by saying, “Well, that’s YOUR interpretation of natural law.” Natural law does not provide subjectively determinant answers, and I do not know of any natural law theorist who claims it does. Indeed, modern natural law scholars argue that natural law systems are true despite disagreement over the specific content of natural law between individuals.
As for the original question about following the law rather than one’s personal beliefs, the answer is that it depends on the level of evil one is asked to sustain.
If I’m a judge and I believe that a particular crime merits 4 years in prison rather than 5 years, then there’s an obligation to defer to the legislature’s determination. But if the question is whether to obey a law that would sentence a litterer to death, then, no I wouldn’t defer.
I suppose that there is a pivot at some point, but I don’t know that it could be identified in advance.
people do this all the time on every topic don´t they:
our side: those are just looney fringe extremists who do not represent us or our position or character and have NOTHING to do with our righteous cause… we are logical, moral, right and we have NOTHING in common with those people.
their side: typical” that reveals their TRUE character and nature and hidden agenda! those people are foolish, illogical, and utterly lack a moral compass (unlike us).
Christians: repentance and reform starts with one´s own self. christians conver the sins of others or put the best possible construction on everything. even when it is about public figures. we treat everyone with dignity respect and deference. especially those we disagree with.
so Dr veith, I put your remarks in that context.