Steven Waldman

Steven Waldman


Do Catholic Judges and Catholic Lawmakers Have the Same Moral Obligations?

posted by swaldman

One of the message board posters, Rev. Martin Fox, took me to task for suggesting that the Bishops might criticize Sonia Sotomayor for being a pro-choice (maybe) Catholic.

“Mr. Waldman’s post misunderstands, or fails to appreciate, the distinctions the Catholic Church carefully makes between the moral responsibilities of a legislator (note, not just Catholic legislators) regarding defense of all human life, and the moral responsibilities of a judge, who must evaluate and interpret laws enacted by legislators.
A Catholic judge is in no way obliged by the Church to uphold or strike down laws based on desired outcomes, but is expected to uphold ones oath and act in accordance with the law.”

Indeed, it’s a point Antonin Scalia made in First Things when he wrote, “a judge, I think, bears no moral guilt for the laws society has failed to enact.”
It’s a fair criticism; I should have pointed out that distinction.
However, it’s also worth noting that some scholars believe that Pope Benedict has amended that distinction to place more of an obligation on Catholic judges to follow church teachings on abortion. Doug Kmiec in Time took note of this statement from the Vatican in February:

“His Holiness took the opportunity to speak of the requirements of the natural moral law and the church’s consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.” [my emphasis]

Kmiec suggested that the inclusion of the word “jurist” may have reflected a radical change, wiping out any distinction between the moral obligations of a Catholic lawmaker and a Catholic judge. It reflected, Kmeic suggested, “a new admonition to ‘jurists’ to undertake an activist, law-changing role.”
UPDATE: Father Fox continues to chide me for ignorance about Catholic law. To be clear, the reason this post was a question, not a statement, is that I do not know, and have not ventured an opinion about, whether judges and lawmakers get treated the same under Catholic teaching. I had a far more modest point: that politically, her being a pro-choice Catholic will likely become an issue.
Today, the equally-ignorant Amy Sullivan of Time magazine writes that Sotomayor “could also find herself on a collision course with the Vatican” as the “latest target of those who believe that Catholic politicians and judges must oppose abortion rights.”



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Rev. Martin Fox

posted May 27, 2009 at 10:53 am


Steve:
I’m sorry to say, that’s weak.
1. You cited not “some scholars” but precisely one. And Mr. Kmiec has to be viewed with a bit of scrutiny since he jumped on the Obama bandwagon and now has to justify that very controversial decision–and he has spent a lot of ink doing so for the past few months.
2. That said, the citation Kmiec offers proves–what? I’d suggest looking not at Kmiec’s commentary, but the statement itself. And it might be well to see what else the Catholic Church has said on this subject.
Oh–you mean Kmiec didn’t cite anything else? Hmmm…



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Michael

posted May 27, 2009 at 11:37 am


“but is expected to uphold ones oath and act in accordance with the law.”
If this is true, then someone like Sebelius is no different from Alito. Sebelius was criticized for refusing to sign laws passed in Kansas that were clearly in violation of Supreme Court guidance. As governor, she’s expected to act in accordance with the law, which also means vetoing legislation that is unconstitutional.
It’s the same reason anti-death penalty governors–like Kaine–give for approving executions: they are acting accordance to the law.



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John Henry

posted May 27, 2009 at 12:08 pm


As a general rule, any statements by Doug Kmiec on matters Catholic require independent verification. He is a law professor, not a canon lawyer, not a theologian, and certainly not an expert (to put it kindly) in this area. In this article, Kmiec is claiming there may be a change in the Vatican’s position based on a strained interpretation of one press release (hardly the teaching instrument of choice for the Vatican); the basic purpose of the article is to attack originalist justices like Scalia and provide some cover for politicians like Pelosi. It should not be relied on as anything other than Doug Kmiec’s interpretation of a press release.



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Rev. Martin Fox

posted May 27, 2009 at 12:24 pm


Michael:
There can be a great deal of difference, depending on the circumstances and what the law in question says.
While I’m not familiar with the Kansas Constitution, and I don’t know if you know how it may circumscribe the governor’s powers, but in general the executive has discretion in shaping and carrying out public policy that a judge does not. Exhibit A would be the power to sign or veto legislation, but surely you can think of other examples.



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Charles Cosimano

posted May 27, 2009 at 12:26 pm


If a Roman Catholic must defer to the Church on matters of law, then maybe a Roman Catholic has no place in public office.



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Rev. Martin Fox

posted May 27, 2009 at 12:28 pm


Also, many people–including, I suspect, the host of this blog and author of the original post–may not realize that the Catholic Church is hardly a stranger to questions of law.
The Church has its own body of law, developed over many, many centuries, and thus has quite a history of law, development of law, and interpretation of law, parallel to that of American and English law.
So the idea that this statement from the Pope represents a shift is really laughable–and Professor Kmiec ought to know that. If he doesn’t, then he really is disqualified as any kind of expertise in this area.



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Rev. Martin Fox

posted May 27, 2009 at 1:32 pm


Charles:
Thanks for the golden oldie!
Did you hear about the tunnel, being dug from the Vatican to Washington D.C.?



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Anonymous

posted May 27, 2009 at 2:43 pm


Rev. Martin Fox,
You could make your point without the arrogance, which reflects poorly on Catholics.
Your expectation that Steven or others should be experts in your religion are unreasonable.



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Rev. Martin Fox

posted May 27, 2009 at 2:52 pm


Anonymous:
Why is it unreasonable to expect the editor-in-chief of Beliefnet to be reasonably familiar with the single largest Christian body in the world, and in the U.S., if he’s going to post articles about it?
After all, Mr. Waldman is a reporter–reporters learn about the subjects they write about.
I’m sorry you think I’m arrogant. Can you please point out what was arrogant in my comments above?



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Anonymous

posted May 27, 2009 at 6:43 pm


Rev. Martin Fox,
Steven should know Catholic “law” due to the size of the Catholic Church seems arrogant. Does big mean more important?
“I’m sorry to say, that’s weak.”
To me that is the same as saying, “Steven you are stupid.”
Steven’s term chided is appropriate for the tone of your comments. I would also include a rudeness that should not be used in religious discussions.
Instead of attacking Father Kmiec, it would have been more helpful if you had explain why he was wrong. It would also be helpful if you provided links for why you are correct. As Steven said, he asked it the form of a question.
“the moral responsibilities of a judge, who must evaluate and interpret laws enacted by legislators.”
Roe v. Wade was an evaluation and interpretation of the Constitution.
Does the Catholic church agree the judges made the correct decision? Would the Catholic Church agree with a Catholic judge that upheld Roe v. Wade?



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John Henry

posted May 27, 2009 at 11:20 pm


Just to be clear, Kmiec is not a priest – he’s a law professor at Pepperdine, who has basically completely reversed his position on matters of Constitutional and political over the past 14 months for reasons he has never really disclosed. He has attracted rather sharp criticism from fellow law professors, Catholic bishops, and journalists (the normally mild-mannered Ross Douthat of the NYT said Kmiec was an “embarrassing shill” who was “acting…like…a useful idiot” during the past election). For relevant background on Kmiec’s rather bizarre behavior over the past 16 months (when he was part of Mitt Romney’s(!)campaign) see the following:
Law professors:
http://volokh.com/posts/1231289178.shtml
http://mirrorofjustice.blogs.com/mirrorofjustice/2009/05/kmiec-on-empathy.html
Journalists (Douthat/Carlson)
http://www.slate.com/id/2203800/entry/2204031/
Bishops (Chaput)
http://priestsforlife.org/magisterium/bishops/chaput-kmiec.htm
The basic point is that Kmiec is not a very reliable source; and, given his reputation, it is odd that Mr. Waldman would quote him as an authority on matters Catholic.



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Rev. Martin Fox

posted May 27, 2009 at 11:33 pm


Anonymous:
OK, I’ll respond point-by-point:
1. I never said Mr. Waldman “should know Catholic ‘law,’ for any reason, let alone “due to the size of the Catholic Church.”
What I actually said was, “many people–including, I suspect, the host of this blog and author of the original post–may not realize that the Catholic Church is hardly a stranger to questions of law.” How is that an expectation that he should know Catholic law?
Also, what I said was, that he should be, and I quote, “reasonably familiar” with the Catholic Church, and he should “learn about the subjects he writes about.” When I was a reporter many years ago, I did research about the topics I wrote about. Why am I wrong to expect Mr. Waldman to do the same, particularly about the biggest Christian body in the world, since he is editor of a religious web site?
2. No, bigger is not more important, but it’s…bigger. When you cover a subject as a journalist, you might reasonably be expected to be familiar with the bigger subjects, and be more readily forgiven for being less familiar with the obscure. The Catholic Church should not be obscure to anyone writing about religion–that’s my position.
3. “I’m sorry to say, that’s weak.”
To me that is the same as saying, “Steven you are stupid.”
Well, I guess we disagree. I was commenting on Mr. Waldman’s argument which I maintain was “weak.” I do not consider Mr. Waldman “stupid,” and I did not say that. That it’s the same to you does not mean it’s the same.
4. “Chided” — yep, I chided him. I don’t back down from that. I may have misunderstood, but I thought this was a site dedicated to serious reporting and discussion about these subjects. I gave my comments on another thread, and I wasn’t the only one who found fault with that post. Mr. Waldman, to his credit, came back with a further development of his thought. And I came back and said, sorry that’s weak. Iron sharpens iron. Frankly, if people don’t want to enter into debate and discussion, and face criticism, posting articles on blogs is an odd way to avoid that sort of thing.
5. “Rudeness” — are you kidding me? How was I rude? This is a blog, in which the author invites comments. I’m commenting. You mean criticism is considered “rude”?
6. I did not “attack” Professor (not Father) Kmiec. That is a false charge, sorry. I said his comments deserved greater “scrutiny”(that’s an “attack”?) and I did explain why. Didn’t you read what I wrote? Yes, providing links is always helpful, but I don’t accept it’s “arrogant” if I choose not to. That’s a bit much.
7. Yes, Professor Kmiec posed it in the form of a question. But I read his Time article–it was a polemical question, and–I’m sorry to say, a ridiculous one. Something Professor Kmiec should know very well to be ridiculous, because he knows full well that if the Catholic Church was altering its approach in this area, it would not do so via such a statement by the pope. It is ridiculous to suggest otherwise, as he does in that Time article. That’s why I said the Catholic Church has a long tradition in the law. My point was, that’s just not how the Catholic Church works things, and Mr. Kmiec knows that very well — or else, he shouldn’t be commenting on the subject in articles in Time, as if he had expertise in this area.
8. To my knowledge, the Church has not spoken out about the justices who upheld Roe, as it has — via bishops — about legislators and how they exercise their responsibility. The issues involved are very different. A legislator has freedom to act in a way a judge may not.
That said, I am not suggesting that the Church wouldn’t potentially have basis for finding fault with a judge — Catholic or not! (note well: the Catholic Church does NOT claim that it’s only her own members who have a grave duty to uphold human dignity, but everyone) — issuing a faulty decision; it’s just that it’s a far more complex issue; it’s a more prudential issue.
I think, because it’s a prudential issue, the Catholic Church has chosen not to weigh in on that. I.e., I may have missed it, but I don’t believe bishops have called for Justice Kennedy to be denied communion, because of his vote to uphold Roe in 1992 or 1993. He can argue (unpersuasively in my personal opinion) that the law demanded him to vote that way, and that is a defensible argument where it is not defensible for a Catholic legislator to argue, he can’t vote for legislation to restrict abortions–or, even more tendentiously, to argue they must vote for laws expanding abortion access or for tax funding.
It’s not a question of whether the Catholic Church “agree[s] the judges made the correct decision? Would the Catholic Church agree with a Catholic judge that upheld Roe v. Wade?” — it’s a question, rather, of whether the judge was properly exercising his or her power properly in that situation. I’m utterly unaware that “the Catholic Church” has said one word about the right interpretation of the U.S. Constitution, and its amendments, and its unenumerated rights, and penumbrae emanating therefrom, etc.



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Rev. Martin Fox

posted May 27, 2009 at 11:52 pm


OK, I didn’t see this addition:
“UPDATE: Father Fox continues to chide me for ignorance about Catholic law. To be clear, the reason this post was a question, not a statement, is that I do not know, and have not ventured an opinion about, whether judges and lawmakers get treated the same under Catholic teaching. I had a far more modest point: that politically, her being a pro-choice Catholic will likely become an issue.”
With respect Steve, no, I am not chiding you for “ignorance about Catholic law.”
I found fault with your argument, which rested so heavily on Professor Kmiec, who I think a reporter with your experience in politics, and now in religion reporting, should know should be viewed with some “scrutiny” as I said, given his political allegiance.
At any rate, I’m sorry to have caused you and your readers any upset with too much criticism.



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Julie

posted May 28, 2009 at 2:02 am


Rev. Fox,
I have a few comments on your statements about Kmiec supporting Obama:
“I found fault with your argument, which rested so heavily on Professor Kmiec, who I think a reporter with your experience in politics, and now in religion reporting, should know should be viewed with some “scrutiny” as I said, given his political allegiance.”
“And Mr. Kmiec has to be viewed with a bit of scrutiny since he jumped on the Obama bandwagon and now has to justify that very controversial decision–and he has spent a lot of ink doing so for the past few months.”
It has been several months since I read Kmiec’s reasons for supporting Obama, but I think he saw the same things other Christians saw. As a Christian, there were many reasons I supported Obama. He has walked the walk of Matthew 25, which is something I do not see in the Republican platform.
Abortion:
Fool me once
Reagan flip-flopped from his position on abortion as a governor and campaigned on a promised of a Constitutional Amendment to make abortion illegal. Nothing happened.
Fool me twice
Bush 2 made the same promised of a Constitutional Amendment to make abortion illegal. Nothing happened.
Not Fooling me a third time
McCain/Palin did not intend to do anything at a federal level to end abortion. After learning from his 2000 primary lose to Bush, McCain flip-flopped on Roe v. Wade to obtain the religious vote that went to Bush.
Steven had the only article I saw that noted the careful wording of both McCain and Palin about abortion
“Oh Dear. Who Will Tell Dobson That McCain/Palin Are Violating the Abortion Platform?” October 22, 2008
Palin promised not to change Alaska’s abortion laws when she campaigned for governor.
Alaska was one of the first states to allow abortion, which occurred prior to Roe v Wade [1970]. By the end of 1972 and before Roe v Wade:
4 states allow abortion on demand, Hawaii, New York, Alaska, and Washington;
13 states legalized abortion for reasons including the mental or physical health of the mother, pregnancy due to rape and incest, and fetal deformity;
Mississippi allowed abortion for rape and incest [1966];
Alabama allowed abortion for the mother’s physical health [1954]; and 31 states allow abortion to save the mother’s life.
Even if Roe v Wade is overturned, many states still have laws allowing abortion.
It is my opinion and the opinion of many in the religious community that Obama has a far more Christian basis in his political agenda than McCain/Palin or most Republicans. The man that introduced Obama at Notre Dame stressed how Obama turned down a high paying job to do Community Organizing. He and the others at Notre Dame are probably dealing with the same reality about abortion.
It was reported that the Pope broke previous protocol by sending Obama a congratulations note after his election and before he was President.
Maybe the Pope saw what many people see in Obama. One example is foreign policy. He has the potential to improve relationships with the Muslim and Arabic world. There are many other examples that would take pages to write.



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Your Name

posted May 28, 2009 at 11:21 am


I’d like to comment on Rev. Fox’s original response, quoted by Steve Waldman above. I agree that a judge is bound to her oath, and operates within the constraints of the law. But we shouldn’t therefore conclude that a judge is able to “leave her faith at the court house door”. (And I recognize that Rev. Fox hasn’t claimed that she should).
For example, a judge is not obliged in conscience to uphold a law that is manifestly unjust. Judges share in the responsibility of all leaders in society – parents, teachers, business executives, politicians, pastors – to build a more just society within the scope of their authority.
While it’s true that judges don’t have the same freedom that legislators have to make laws, it is neverthess true that, in their role of interpreting laws, judges do contribute to legislation – that is why case law is as legally binding as the original legislation itself. So judges are, in a sense, lawmakers, and to that extent, it seems reasonable to attach to the judiciary the same expectations that the Catholic Church attaches to legislators.
Certainly the Supreme Court of the United States possesses a wide scope to overturn both just and unjust laws, so in considering the nomination of Justice Sotomayor, it seems important to examine her background and religious beliefs. The Catholic church has a broad and deep vision of what characterizes a just society, embodied in social principles such as the Common Good, the Preferential Option for the Poor, and Respect for all Human Life. Secular law overlaps with these social principles to a large extent – and, on occasion, conflicts with them. We should expect the “Catholic” vision of a just society to influence a Catholic judge’s views of justice.



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Turmarion

posted May 28, 2009 at 7:50 pm


OK, I decided to ask someone who might know regarding this. I asked this question at the canon law forum over at the website for Eternal Word Television Network (EWTN). As many here might know, EWTN is Mother Angelica’s satellite network which emphasizes Catholic content. It is conservative and hews strictly to Church teaching. One of its excellent features is the Questions Forum, where anyone can email questions on different areas of Catholic belief, faith, practice, etc. I posted a question about the issue under discussion here, and it was answered here.
Here is my question, editing for length (go to the link to read the full thing):
“I have been following a discussion elsewhere about the nominee to the Supreme Court, Sonia Sotomayor. In this context, there has been some debate about the responsibilities of Catholic jurists regarding abortion cases. I excerpt this quote, with names removed: ‘I think Mr. W’s post misunderstands…the distinctions the Catholic Church carefully makes between the moral responsibilities of a legislator…and the moral responsibilities of a judge…. A Catholic judge is in no way obliged by the Church to uphold or strike down laws based on desired outcomes, but is expected to uphold ones oath and act in accordance with the law.’ Is this, in your view, correct?”
Here is the answer given, by Fr. Mark J. Gantley (edited slightly for length):
“I do not personally agree with the distinction that you are describing. In my opinion, the founding documents of the United States of American are clearly based on principles of the natural law — that all men are created equal; that we have a right to life, liberty, and the pursuit of happiness; many of the rights of the Bill of Rights, etc.
I view the rights to ‘life, liberty, and the pursuit of happiness’ as hierachical — the right to life coming first, then liberty, then the pursuit of happiness. One’s pursuit of happiness cannot violate another person’s liberty, and one’s right to liberty cannot violate another person’s right to life, including the unborn. I don’t see how this would be different for a person in the legislative vs. executive vs. judicial branch of government.
All authority comes from God. He is the supreme judge, president, and legislator. He formulated and signed the natural law, and he interprets its application.
We must be careful to avoid being legal positivists — those who think that there is nothing beyond the law other than the letter of the law….In the olden days in England, when someone brought a case to a judge, his searched for the law not just in legal texts issued by legislators and in the texts of past cases but among universal principles of justice, truth, fairness, etc….. Legal positivism on the other hand approaches law from a narrow perspective that it must be written down and promulgated or the law doesn’t exist.
The goal of modern legislators and judges should not be merely to see the letter of the law but strive to pass and interpret laws based on principles of justice and fairness.”
It would therefore seem that there are knowledgeable and orthodox Catholics who would disagree with Fr. Fox and Justice Scalia. Make of the implications of this what you will.



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