August 09, 2005

Catholic Supremes

Catholic Supremes

I just came across an op/ed piece in today's Boston Globe that I think warrants serious consideration. The writer starts out by asserting that some Catholic bishops of the United States put the whole separation of church and state matter on a whole new level when they threatened to withhold Holy Communion from John Kerry because of his pro-choice position. Withholding Communion is tantamount to excommunication, and it represents a serious disciplinary move designed to force individual Catholics to change their minds or their behavior.

The writer of the op/ed goes on to say,

The Senate Judiciary Committee is now fully justified in asking these bishops whether the same threats would apply to Supreme Court nominee Judge Roberts, if he were to vote to uphold Roe v. Wade.

The bishops have made this question legitimate because Americans no longer know whether a Catholic judge can hear abortion cases without an automatic conflict of interest.

When judges may derive a financial gain from the outcome of a case before them, they must disqualify themselves; this requirement should be even more urgent when the gain in question is full Communion and the promise of eternal life. According to the American Bar Association's Code of Conduct for United States Judges, Canon 3, Section C 1 (c), a judge must disqualify himself when he has ''a financial interest . . . or any other interest that could be affected substantially by the outcome of the proceeding." Maintaining one's membership in the church and the prospect of eternal life surely count as such an interest.

Immanuel Kant held that no decision could be considered impartial or ethical if personal interest in the outcome played any role in it. It is time for this principle to be observed in our judiciary.

Asking the bishops to testify would be healthy. If they rescinded the threats made against Kerry, then Roberts would feel free to make his decision without the appearance of a conflict of interest, and Catholic politicians who support Roe v. Wade would gain renewed confidence in their advocacy. If the bishops repeated or confirmed their threats, the Senate Judiciary Committee should draft legislation calling for the automatic recusal of Catholic judges from cases citing Roe v. Wade as a precedent.

Source: click here.

The article in the Globe only mentions John Roberts and Antonin Scalia, but they wouldn't be the only Catholics on the Supreme Court, if Roberts is confirmed. Justice Anthony Kennedy is also Catholic, as is Justice Clarence Thomas (at least some of the time). If these justices had to recuse themselves from cases involving anything related to Roe v. Wade, that would only leave 5 justices capable of voting. I don't know what constitutes a quorum for the court, but I'll bet it's more than that.

I find this greatly ironic in several ways.

First, the Catholic bishops who tried to railroad Kerry on pro-choice matters are perfectly capable of doing precisely the same thing with Catholic members of the Supreme Court, on this and on other issues. Unless the bishops back off their threats of denial of Communion to Catholic politicians, they're basically making it impossible for Catholics to be taken seriously as political or judicial figures. True, somebody like Scalia might be opposed to Roe on its face, but, given the threat of virtual excommunication if he doesn't toe the party line on abortion, can we really be sure that his anti-Roe votes are motivated by anything but fear of what many traditionalist Catholics feel is almost-certain damnation.

Second, I think it's amazing that almost half the members of the Supreme Court (assuming Roberts is confirmed and Thomas really is a Catholic) are members of the Catholic Church. That would be 3 out of 9, or 4 out of 9, depending on where Thomas stands. And if Bush appoints a Catholic Chief Justice--an Alberto Gonzalez, say--that would be a majority of Catholics on the Court. As far as I know, the only Catholics to serve on the Court before the present crop were Chief Justice Edward Douglas White of Louisiana and Justice William Brennan.

Third, certain Catholic bishops, in their attempt to provide "strong moral leadership" by threatening Kerry and others, might have inadvertently made it impossible, at least on a logical and philosophical level, for other Catholics to provide "strong moral leadership" in the public sphere. It's almost as though the Al Smith-era concerns about Papal bulls grazing on the White House lawn have come true, only it's the White House staff, and some lacky bishops, who are out there feeding them.

It will be interesting to see if Christopher D. Morris' editorial in the Globe gets any attention from the Big Boy bloggers or the mainstream media. I think Morris makes some very good points, proving yet again, perhaps, that the intellectual leadership in this country really does reside in New England.