I want to put out a hypothetical to get peoples thoughts. Assume someone who has the following qualifications is nominated as the next Supreme Court Justice:

1) Graduated from Harvard Law School first in his class; Editor in Chief of the Harvard Law Review; widely regarded as having a brilliant legal mind;
2) Practiced general litigation and tax law for fifteen years after which time
3) He became a federal tax court judge and has acted in that capacity for a decade and is well respected as a fair tax court judge
4) He is a devout Catholic, and believes, as all devout Catholics do, that abortion is the taking of human life.
5) He volunteers his time with a Catholic organization that counsels unmarried pregnant women about options other than abortion.

Question for Debate:

Should this man sit on the Supreme Court?

I have a hypothetical situation for you. Lets assume your entire scenario is the same...except part 4 where he is a devout atheist and firmly believes that abortion is not the taking of human life. Should this man sit on the Supreme Court?

The question in and of itself is ridiculous. All anti-abortion judges are not qualified to sit on the court? Is that what you are trying to imply? Or is it because his belief stems from religion? What if it didnt stem from religion...but common sense...would there be any difference whatsoever?

Does a person's opinion on a subject any more or less meaningful if that opinion comes from religion? Whats the difference between religious and political ideology? The fact is that it doesnt matter if i believe the sun revolves around the earth because my religion tells me it does or if its because i never used a telescope. I still believe what i believe. (obviously i know the earth revolves around the sun...just using an example )

Okay. Let's turn this around just a tad, hmm?

1) Graduated from Harvard Law School first in his class; Editor in Chief of the Harvard Law Review; widely regarded as having a brilliant legal mind;
2) Practiced general litigation and tax law for fifteen years after which time
3) He became a federal tax court judge and has acted in that capacity for a decade and is well respected as a fair tax court judge
4) He is a devout Muslim, and believes, as all devout Muslims do, that female genital mutilation is a valid religious practice.

Should this man sit on the Supreme Court?

Anyone who is going to base their opinions explictly on religious texts should have no place in American government. Ours is a government that serves all people of all races, sexes, nationalities, religions, everything, and as such should not be held accountable in court by judges with biases not based on logic or fact, but religious dogma. The only possible exception I would allow for personally supporting a religiously devout individual to fill a judicial post - of any religion - is if that person has consistently demonstrated an ability to separate their own personal religious beliefs from what they're supposed to use to make their decisions - the law and the Constitution. If this person doesn't bow down to hostile religious rhetoric and threats to be excommunicated if they don't make such-and-such decision, if this person is able to make a Constitutionally valid decision that directly contradicts their unconstitutional personal religious beliefs - i.e. "freedom of religion" vs. "thou shalt have no other gods before me" - that is what I define as someone who is able to separate personal religious beliefs from Constitutional law.

Edited to add: Leder, atheism is not a religion any more so than not believing in the Easter bunny is a religion. You can't be devout about non-belief.

You left out an important point in your list of characteristics.

Would this man inject his personal feelings into a case over what the law (especially the Constitution) calls for?

That is far more important than most of the other things you mentioned. And the answer to it, would pretty much dictate my reply of Yea or Nay.

Examples might be:

(1) Suppose he privately hated black people, but his judicial history on civil rights legislation showed an unbroken string of decisions that abided by the letter and spirit of the 13th and 14th amendments, and to Federal laws that did not conflict with those and other Constitutional dictates. In that case, I would say Yes, he is acceptable for the bench.

(2) Suppose he was ambivalent toward blacks and other minorities, and felt that they had been given a raw deal in our history (slavery, etc.). And he had once rendered a decision that the University of Michigan could go on using certain types of "reverse discrimination" to increase the diversity of their student body and to give certain minorities another chance to get a higher education. In that case, I would say he is not suitable for the bench, since he places his personal feelings above the Constitution's clear command that racial discrimination is forbidden.

Should this man sit on the Supreme Court?

This question came up when Kennedy ran for president in 1960. If the said judge could approach the job much as Kennedy did the presidency, there is no problem.



http://www.humanistsofhouston.org/JFK_speech.html

I would not, however, favor the judge you mentioned. Tax law is a rather specialized field. I would prefer a jurist with broader more generic credentials--one who had come up through state courts, to federal district courts and then to the federal appellate level.

Well whats the difference? Whats the difference between being a christian and an atheist? Is it not similar to the difference between a communist and a capitalist?

The bottom line...wherever it is your beliefs come from is irrelevant. What is relevant is the actual belief. So if i believe abortion is wrong for non-religious reasons...it is just like believing abortion is wrong for religious reasons.

How would someone demonstrate an ability to separate personal religious belief from what they are supposed to use to make their decisions?

What if the person in the hypo -- said they would uphold Roe, but continues to work at the volunteer Catholic organization that counsels women against abortion?




Bof-- that is why I said he practiced "general litigation" and tax law.

A good Supreme Court Justice needs to be objective about his beliefs. A good Supreme Court Justice needs to be the conscience of the State, regardless of his beliefs. It is when Justices deny the "state of the union" -- for lack of a better term -- and begin imposing their own moral code rather than the moral code of the State that we start having problems. A good Supreme Court Justice needs to follow the State's moral code if the State is unwilling to follow it -- even if it is contrary to his own moral code. This is how the Judicial System should work if it is going to be a proper check and balance for the other branches.

If, hypothetically, we lived in a country where murdering your neighbors was perfectly legal and constitutional... a Supreme Court Justice who felt that all murder was immoral would have to set aside this particular value when it came to his profession.

We shouldn't appoint Justices for their moral beliefs, we should appoint Justices for their moral objectivity.

So, to answer your question... I don't know enough about the man to say yes or no.

Assuming that this person has a history of ruling with the letter of the law, then it is NOBODY'S darn business what his faith is. You can not ask someone's religion in a job interview. It is flat out discriminatory. You can sue for it. What you do is more important than what you believe.

There is a difference in practicing general litigation and serving on the bench in such cases. Let me reword that. Ideally, I think Supreme Court Justices should come from Federal Appeals Courts.

Question for Debate:

Should this man sit on the Supreme Court? Sure, it'll frost the cookies of the Protestant Religious Right (aka KKKKristians) when he applies his devoutly held Catholic beliefs in death penalty cases.

Actually, for some jobs you can ask someone's religious beliefs. As a general rule, when one is interviewing to be a minister, pastor, priest, the topic usually comes up. But with regards to a Supreme Court Justice, you are dead on, only its a Constitutional prohibition. No religious test for Federal office. None, nyet, nada.

But I say nay nay. The State has no moral code of its own. The community does, and the State may reflect that, but of and in itself, it has no moral code, just as it has no money. Furthermore, you're contradicting yourself. A justice cannot "be the conscience of the State" while at the same time adhering absolutely to the "State's moral code." Consider if you will a thief, who's moral code is "what's yours is mine, what's mine is mine." When we speak of the thief having an "attack of conscience", we're referring to a different moral code intruding.

Not to be obtuse, but what do you define as "moral objectivity?"

The Constitution disagrees with you. An individual who bases their opinions explicitly on religious texts has just as much of a place in American government as the individual who worships at the altar of faulty, tragic, and limited human reason.

Wrong. Judges, quite simply, are to base their opinions on the Constitution. It is, by definition, the very job of Supreme Court justices to evaluate the Constitutionality of laws. They are to base their opinions on previous decisions, the Constitution, etc. Not religious texts. A justice cannot simply strike down Roe v. Wade based on his religious beliefs. He has to write out why it is unconstitional. If every single Justice was a devout Catholic, struck down Roe v. Wade and wrote simply in their opinions "abortion is against my religious beliefs"... they can't do that. They have to cite previous court rulings, base their opinions on their knowledge of the law and the Constitution.

Then I guess, to further your argument, that the State also has no interests.

The moral code of the State is reflected in its laws... many times this may conflict with the moral views of the community. If something is illegal, the State views it as immoral. Likewise if something is legal, the State does not consider it immoral -- even if the majority of the community feels that it is.


If it is a true attack of conscience, then the thief was going against his moral code in the first place. A thief who truly believes that "what's yours is mine, what's mine is mine" is not going to have an "attack of conscience." At times one can view the State as that thief who is having an attack of conscience... the interracial marriage cases reflect this.


A perfectly legitimate question.
What I mean by moral objectivity as it relates to the Court Justices is:

The ability to view the moral choices of others from an objective standpoint. This means that the justices own moral code doesn't come into play. This is necessary, because a Justice needs to analyze the actions of an individual or the State as they relate to the moral code found in the laws of this country.

I see no problem with the qualifications of such a nominee and would probably vote to confirm if I were a Senator. However, I would prefer a background in constitutional law, preferably from a strict constructionist perspective. Of course, getting him past the Dems in the Senate would be a political problem.

Hayleyanne, is there a particular indivdual you have in mind here? Perhaps one who has already served on the SCOTUS?

I see no problem with such a person, if otherwise qualified, unless she had made it clear that she would base her decisions on her religious faith rather than on a legal basis. I can't imagine such a person coming anywhere near to being nominated for the Supreme Court, so this seems like kind of a moot point to me.

Bof wrote:



Only from the Federal Appeals Courts? I think we can agree that they have to be lawyers because their job is to interpret the Constitution, but is it in our best interest to have people with only a very limited background in the sense of career? Why not seek more balance? For example: a governor? a senator? a former president? a prosecutor? a defense attorney? a civil litigator? a tax attorney? a professor?


Suzy Steamboat wrote:




They wouldn't base the overturning of Roe on religious grounds though would they suzy? Instead they would overturn Roe as having been a wrong decision-- Bad constitutional law in the same way that Plessy v. Ferguson (separate but equal) was overturned.

Entspeak wrote:



What does this mean? For example, when the Court overturned the juvenile death penalty was it breaching its duty to analyze the actions of the State as they relate to the moral code found in the laws of this country? It must have been a breach because clearly the laws of this country -- up until the Court's decision-- reflected that the juvenile death penalty was consistent with the moral code of numerous states.



Again, if the justices' own moral code doesn't come into play-- how could the Court justify overturning the juvenile death penalty?



No particular person. But maybe I should have taken that approach, it might have been interesting.


Victoria Silverwolf wrote:


Why would that person NOT get nominated? Maybe I should have phrased the debate question as whether such a person should be "nominated".

The current moral view regarding the death penalty for juveniles is that you can't use it for juveniles under 15. The question is not whether the death penalty itself is unconstitutional, there certainly is no national consensus that establishes this. So, the question becomes if you do allow the death penalty, what is the minimum age. Fewer than half of those states with death penalty laws limit them to those above the age of 17. So, I feel the court was wrong. However, I do not believe that juveniles under the age of 18 should ever get the death penalty and would certainly vote in my State for a law that established that limitation.

Before responding to the specific query, may I ask the following?

1. Are there any qualifications for appointment to the U.S. Supreme Court?
2. Need one be a lawyer, a judge, or even schooled in the law?
3. Is subscription to any religious doctrine a per se disqualification, notwithstanding one's other qualifications?
4. Who is to judge the judge?

The Constitution sets forth no specific qualifications for appointments.
The confirmation process cannot inquire into religious beliefs.
Presumably you want a lawyer because they are charged with interpreting the Constitution.

That is the problem-- no one is "judging" the judges after they are appointed.

Given its title, the more I see of this thread the more I wonder why it is necessary. During out history we’ve had one Catholic president—John F. Kennedy—elected in 1960. On the other hand, we’ve had nine Catholic Supreme Court Justices. We had a Catholic Chief Justice (Taney) 124 years before a Catholic president.

They are in the order of appointment:

Roger Taney (1836)

Edward L. White (1894)

Joseph McCenna (1898)

Pierce Butler (1923)

Frank Murphy (1940)

William J. Brennan (1956)

Antonin Scalia (1986)

Anthony Kennedy (1988)

Clarence Thomas (1993)

Taney was confirmed as Chief Justice and White was later elevated to Chief Justice.

One third of the current court--Scalia, Kennedy and Thomas are Catholics.

http://www.infoplease.com/ipa/A0101281.html

I'm gonna have to agree with Suzy here folks. If he was devout Jew, Muslim, Budist, etc. that should have no impact on whether or not he gets the job. With that being said, the job of a SC Justice is to uphold the Constitution, if he is unwilling to do that then he shouldn't be considered. That pretty much goes for anybody. I wouldn't be in favor of such a man's appointment because most "devout" anythings in this country bring their cross with them to work [metaphorically speaking of course], and that is a no-no...Not to mention illegal, but hey, who the hell said the government has to follow the law?

CP

Everyone I think agrees that as long as someone can uphold the Constitution-- that person's ability to sit as a Supreme should not be questioned.

I think the issue is whether upholding the Constitution means upholding Roe v. Wade. After all, Roe is not textually based in the Constitution. So it is certainly conceivable that a person could "uphold" the Constitution and still overturn Roe. The Constitution means what 5 out of 9 Justices say it means. Are we at a point today where some people would not agree with the meaning of the Constitution as "interpreted" by a devout Catholic?

First, I didn't realize this was a thread about whether or not Roe v. Wade should be overturned.

Second, where is it written in the cosmos that Roe is not textually based in the Constitution? You are arguing a point of debate as though it were a universal truth.



I guess... I don't understand what you are getting at here. As I think most have stated here, it would depend on how the devout Catholic approached his interpretation. Isn't this the same question you asked initially?

It's not. But it would likely be one of the first things that anyone thinks about if a devout Catholic is nominated to the Court.



It's not written in the Cosmos. The right to an abortion is just not written in the Constitution.


Are we at a point today where some people would not agree with the meaning of the Constitution as "interpreted" by a devout Catholic?



People are side stepping the issue by asserting that a devout Catholic can sit on the Court if he "upholds the Constitution". I am pressing people with a more detailed question as whether a devout Catholic, or any devout religious person for that matter, sitting on the bench, would cause concern for those who wish to see the Constitution further expanded.

Whether or not someone is Catholic or some other faith is factual. The question of whether or not the person is devout or how devout rests on a value judgment. What divides devout from non-devout and who decides? As darlings of the right, are we to assume that Scalia and Thomas are devout, but that Kennedy is not?

If there were elements of the US Constitution that were inherently contradictory to Catholicism, then such a person should turn down the nomination because sitting on SCOTUS would result in either violating the laws of the Church or of the State.

Fortunately, there is nothing in the US Constitution that violates Catholicism-- there are only interpretations of it that violate Catholicism, and any strict constructionist/textualist/reasonably wise Justice would strike down those interpretations on grounds of their extraconstitutionality quite apart from any religious considerations.

Speaking in hypotheticals, if such a person were to sit on SCOTUS and reverse the Roe v. Wade opinion, then later if the People were to pass a pro-abortion amendment, and then a case were to come before the court testing the pro-abortion amendment, perhaps the only thing the devout Catholic could do in good conscience would be to resign, if the only options were to either violate the laws of the Church or the Constitution.

Roe v. Wade is an opinion, a shaky one, and not directly encoded into the Constitution, so the Supreme Court has the prerogative to change its opinion on the basis of US law and legal tradition. If a Justice can render an opinion based on relevant law without violating their religious convictions (as one most always can, so far) then so much the better.

So yes, if a President were to nominate such a person to the Supreme Court and I were a Senator and couldn't find any problems with the candidate, I would offer my consent.

(as I type this, I see hayleyanne has made a similar remark that my post seems to answer.)


I am not Catholic, but I'm familiar enough with the major teachings of the Church to be comfortable that devout Catholics interpreting the Constitution would not currently be forced to violate their faith in order to uphold the Constitution, but I wouldn't say with any confidence that I'm in the majority-- I could very well be outnumbered by those who believe that the Constitution is supposed to represent some unwritten code of left-wing morality rather than what it actually says.

As others have pointed out there's no reason why anyone's denomination, sect, or non-belief are sufficient to exclude them from serving on the court.

The problem with this thread, as I see it, is not your pro-life belief or preference for "textualists," directly. The problem is several assumptions based on a wanted outcome. In this case, your desire to see Roe overturned. Some of these assumptions are:

1. Judeo-Christian religions are unanimously opposed to abortion
2. Liberals think judges of practicing <insert Judeo-Christian religion> faiths are more likely to overturn Roe
3. Liberals don't want devoted <insert Judeo-Christian> judges on the bench so Roe stands

You're either playing yourself, or trying to play us, Hayleyanne. Roe is just as likely to be overturned by an atheist as a believer. Religious people neither have a monopoly on morality nor federalism. These inferences are tiring, even when they are used to put a "constitutionalist" mirror in front of us.

So yeah, it is conceivable that Roe could be constitutionally overturned, just like cases supporting corporate personhood could be overturned, though I doubt the "textualists" will overturn the latter. No reason to start upholding a constructionist interpretation across the board one hundred and fifteen years after Beckwith.

Ah, I see. It's another one of your bait and switch questions. Well, if you asked the second question the first time, maybe you wouldn't feel people were side-stepping the issue. I just don't think I'm going to play along with this one. You make too many assumptions. Have fun, though.

I personally would never support a Supreme Court nominee who couldnt seperate his job from his religion, especially when his job criteria demands he be impartial. If he cannot proceed in a multi-religious nation without adhering to the dogma and dominance of his own then he should have the personal integrity to not insert himself into a secular job.

A recent event should shed some light on this. Judge Greer from the Schiavo case. A devout baptist who ignored his personal feelings and the wishes of his church to rule on law and not religious interpretation. To do his job. That is exactly what he did. On the O'Reilly factor one of his best friends was on and this is what he had to say to The O'Relly's fill-in's question regarding religion and law. Greer friend: He had to seperate his personal faith from his professional job. O'Reilly fill in: You can't do that though can you? Greer friend: You have too. That is exactly right you have to base law on what is known not on how 1 religion views it. Judge Greer's friend later went on to say that "He was appointed as a judge that happened to be religious not as a religious judge." I wish Roy Moore was watching.

Off that case I may be inclined to support someone like Greer who despite being at philosophical odds with me personally, still has the integrity to rule based upon law and not his religion. Too bad his baptist church wasnt so understanding as they kicked him out.

Lesly, I am not “playing” anyone. I am trying to get people to be honest and look more deeply at where we are today when it comes to the cultural divide and the power of the judiciary.

As I think you know, I am troubled by the absolute power of the judiciary. I am also troubled by the cultural divide in our country between those who embrace moral relativism and those who do not. It is playing out in our courts today and the primary stage is the Supreme Court with the script being the Constitution.

Of the three assumptions you say I make—let me clarify what I am assuming:

I do assume that Liberals think judges who are devoutly religious are a threat—and not just to Roe. I just picked Roe because that is the current “litmus test” for judicial nominees. I believe that Liberals think they are a threat because devoutly religious people—at least judeo Christians—do not adhere to moral relativism. Moral relativism, I believe, at least in part, is the reason why we have the current “culture war”. The culture war is being fought over all the issues of the day, like, abortion, gay marriage, euthanasia.

The Court has taken sides in the “culture war” and in so doing, has departed from its role as neutral interpreter.

I was hoping that people would really consider the question carefully and honestly respond.

You pick and choose. You haven't answered why this thread is necessary since Catholics have been Supreme Court Justices since the early 1800s. Indeed, as I already pointed out, there are three Catholics on the current court. Unless none of the three are devout, your thread is irrelevant. Further, you have not told us how to define "devout" and who is to do the defining.

I think the answers on this thread have been more honest than the thread itself and the replies you have given.

If nominated by the elected President and voted approved by Congress, yes.
(as long as the majority party calls the bluff of any procedural ploys to block it....

Opponents are smarter than being baited into outspoken bashing of religious beliefs, but they'd probably argue for a continued Roe v. Wade litmus test for SC nominees, albeit in veiled language.

In your hypothetical, it all comes down to who did the public elect to appoint the nominee - that speaks louder than any opinion poll.

I'm sorry; my statement was poorly written. Let me clarify it:

I can't imagine that a person who would base her decisions on her religious faith other than on a legal basis would come anywhere near to being nominated to the Supreme Court.

I hope this makes more sense.

You're right-- there's an assumption that "devout" has a meaning we all agree on. The one I was using with regard to Supreme Court Justices is whether or not they would interpret the Constitution in such a way as to violate Catholic teachings.

In Catholicism, there is often less "wiggle room" with regard to certain core teachings than with many mainstream Protestant groups-- government officials who are Catholic and use their official position to defy the teachings of the Church are usually in big trouble-- excommunication is no laughing matter-- some see it as a ticket to hell. Until recently, it was assumed that the US government would never even consider approving laws that would violate the core teachings of Catholicism, so the point was moot. Now that we're getting pretty close to revoking every law that smacks of morality and trying to erase any hint of religion from the public sphere, preferably by mandating laws that violate Catholic teachings-- whether or not someone should sit on SCOTUS who actually believes in Catholic teachings-- belives she risks hell by supporting laws that violate certain Catholic teachings-- that's a legitimate question if you think the Constitution really does force a policy of unrestricted abortion, which the Church classifies as murder. Maybe a real catholic will chime in and correct any mistakes I've made in this analysis.

The fact that Catholics have served on the Supreme Court in the past and present, and serve in Congress, is not in itself proof that they have not violated the teachings of the Church to an extent that might even warrant excommunication-- if you recall, there was an issue surrounding John Kerry's voting record and his Catholic faith in the last election.

I would argue that right now, there's still no problem with Catholics serving in Congress and on SCOTUS because their oath to uphold the Constitution does not violate Catholicism-- but in a realistic future scenario that the Constitution were to explicitly violate Catholicism-- a Catholic Justice could be put in a position where she might have to choose between treason, excommunication and resignation. The operative definition of "devout" is one who, if faced with such a situation, would not chose the path that flirts with excommunication.

I am just really baffled here. Two posters to me that are kind of making me shake my head in confusion is the author of the thread and now Jack. You both seem to be taking opinions and throwing them on people as facts.

Jack makes reference to the elimination of everything that smacks of morality and the elimination of religious reference from our everyday sphere.

Did I miss something? Did the government make murder legal in the past few hours or something? Have churches been abolished? I do not understand or get that reference.

How so? I do not see any moral decay.

Hayleyanne seems to have tried to ask liberals loaded questions and then when she didnt get the answers she wanted say we are not being honest. Someone even said that "opponants are smart enough not to religious bash".


So the whole point is to out liberals as anti-religious?

If that is the case then this post is going to last until the end of eternity. Liberals are not anti-religious they are anti-1 religion domination of other religions. They are anti 1 sect of religious values overiding and trumping other's and their religious values.

If a "devout" Jew or Muslim was nominated and intended to abolish pork and alcohol would that be okay? Would it be okay for him to direct law to fit his religious teachings? If a Hindu banned the eating of the sacred cow would that be okay?

If someone's moral objection prevents them from doing a job that at times may counter their moral beliefs then in a civilized society it is in that person's best interest to refrain from that job.

Similiar to how people avoid drafts because of conscientious objector status.

Some can however multi task. They can be true to their religion and not dicate to other's based upon the princples of their religion. Witness Judge Greer from Florida. Witness JFK, Jimmy Carter etc etc.

Hayleyeanne why dont you tell us what you were trying to trap us into saying so we can tell you why we dont believe it and why we wouldnt say it.

To me it seems as if you handed us what you thought were loaded questions and then called us dishonest when we answered truthfully and didnt pull the trigger.

I wasn’t trying to “trap” anyone into saying anything. I set the hypo out as I did – without direct reference to Roe, because I didn’t want this thread going off on whether that decision was a correct one. Nor did I want the thread going off into a discussion of constitutional interpretation. It was set this way so as to get people thinking about how comfortable they would feel with someone who is devout in their religion being the final arbiter on the moral and cultural issues of the day. People did side step the issue by qualifying their answers with : “as long as the person can uphold the Constitution.” Like good school children repeating the lesson they just learned in civics class. But I am asking people to delve more deeply into it. What do we as a country, expect from our Justices, when it comes to their personal moral and religious values? Some did tackle the question head on. Here is what we have:



Sounds right to me. In fact, this is exactly what I would expect from a Supreme Court Justice. A Justice is bound to follow the moral code as evidenced by our existing laws. It is not be appropriate to substitute his or her moral judgment for the State’s. But is this what we have really or even what we have come to expect? Any number of cases in the recent past indicate that this is not what we have at all. The juvenile death penalty case comes to mind first. A significant percentage of States had the Juv. DP in place, but the Court overturned those laws because they no longer were in sync with the “evolving standards of decency in a civilized society”. Says who? Certainly not the States that had it in place. Wouldn’t a Justice analyzing the actions of the State through the moral code of the law itself be bound to uphold the juvenile death penalty? Or did the justices substitute their own moral code for that of the law’s? Or another obvious example is the gay marriage issue. Fifteen states now have constitutional amendments that expressly limit marriage to a man and a woman. Will the Supreme Court’s future declaration that such a limitation is unconstitutional elicit cries from the Left that the Justices are substituting their individual moral code for the one that is evidenced in the law of these States? I think not.

Or we can look at another issue that the Right would be more likely to favor: the conscience clause exception for pharmacists. Assume the Supreme Court held that legislation that would prohibit a pharmacist from refusing to fill a birth control prescription was a violation of the first amendment. Clearly, if the Justices were required to follow the “moral code” embodied in the legislation, they would have to uphold it.

The “living” constitution approach hinges on the judges being the final arbiters on these moral and cultural issues. That being the case, do we really expect our judges to refrain from substituting their own personal moral code for that which exists in our laws? If that is not what we expect—what do we expect?

I think the preference for who will sit on the Court depends on whether you adhere to a view of moral relativism or not.



A judge who adheres to the philosophy of moral relativism will be loathe to support a law that assumes an absolute moral truth. Ex. Traditional marriage is the only proper arrangement for the state to sanction. Or, the death penalty is appropriate as punishment even if that includes juveniles. Sodomy can be illegal because it is immoral conduct. Etc.

People who are devoutly religious, tend to reject the philosophy of moral relativism. They tend to accept that there is such a thing as a universal truth. They will be loathe to strike down as unconstitutional a law simply because it assumes an absolute moral truth. Of course, they may also be loathe to uphold a law that furthers a practice that they believe to be morally wrong.

I believe that Liberals are more fearful of the latter than the former. Therefore, if they could wave a magic wand and stack the Court, it would certainly be stacked with judges who adhere to the philosophy of moral relativism.

deleted

Okay, well, as I understand it, the role of a Supreme Court judge is to make a final judgement on a particular issue, using his or her interpretation of the Constitution as guidance (rather than personal religious beliefs, ethical code etc).

So, assuming a devout Catholic (or anyone) can swear on whatever is holy to them, that they can do this, then they would be suitable.

Realistically, no judge can be utterly objective when interpreting the Constitution, because utter objectivity is not something that humans can achieve. To some extent, that judges upbringing, religion, view on life, will have an effect on the interpretation. Even a judge aiming to be as objective as humanly possible will still be subjective. But by having 9 judges, this effect is generally diminished.

So I would say that , as long as a judge can swear that he/she will be as impartial and objective as possible, then they could be a judge. They may be involved in a case where the Constitution is clear on a matter that they find personally abhorent. However, one assumes they would carry out that which they swore to do.

(There was a similar case in the EU a few months ago, where Rocco Buttiglione, the proposed EU Justice and Security Commissioner was deselected because he held very clear and strong Catholic views , which in itself is obviously not a problem, but he was unable to swear that he would set them aside when deciding issues relating to EU law. Had all of the EU countries been as devoutly Catholic as Italy, then this probably wouldn't have mattered, however containing several Protestant and secular countries meant that a lot of members were unhappy with someone who felt he was unable to set aside his relious views)

Let me place some emphasis on a few words, and change one: "getting pretty close to revoking every law that smacks of religion (was morality) and trying to erase any hint of religion from the public sphere"

When I said "getting pretty close," it was a slippery-slope reference, not the status of the world as it is today. When I used "morality" instead of religion, I hadn't fully shifted gears out of another conversation where a utilitarianism proponent asserted all law is utilitaritarian, not moral, and all morality for morality's sake should be removed from law. By morality what he really seemed to mean was religion rather than the regular definition of distinctions between right and wrong, so I changed the word to better fit this conversation.

When I say we're "getting pretty close to ... trying to erase any hint of religion from the public sphere," I did not mean to imply the government was burning churches, but is on the road to restricting the free exercise of religion by public (government) officials, people who work or visit public (government) buildings and many workplaces. Right now, they are not actively promoting that "religion is the opiate of the people" as in China, but it rarely ever starts out that way.

You say you do not see any moral decay. Moral decay, like any decay, happens over a long period of time. If my reference for moral decay is to compare yesterday with today, I might also not see any decay. As a student of history, I look at the founding of our nation compared with today. In many ways, we have improved morally-- elimination of slavery, women voting, civil rights-- but overall, the general respect for morality has certainly declined.

You ask if the government legalized murder in the last few days. This topic is about Catholicism, according to whom the government legalized murder in 1973. Even if you don't agree with that, then ask Terry Shiavo whether or not the government recently legalized murder.

I don't despise liberalism-- I think a lot of good has come out of it, but like conservatism, so has a lot of bad.

As for presenting opinion as if it were fact, I rarely present any facts, so assume everything I type is an opinion unless specifically stated otherwise.

Hayleyanne,

There is a difference in the way the Supreme Court needs to look at the Juvenile Death Penalty and the issue of Same-sex marriage. The Juvenile Death Penalty decision needs to be based on a national consensus, because while the States have the right to make decisions regarding the Death Penalty, they are limited by the Eighth Amendment. So, how does the Court then interpret what "cruel and unusual punishment" means? Such a definition, according to the Eighth, is not left to the individual States to decide, so a national consensus must be established. There isn't a national consensus that states that the Death Penalty is "cruel and unusual punishment" -- the majority of States allow for the Death Penalty. The question that should be addressed: is what is the national consensus on how juveniles should be regarded when the Death Penalty is applied? When the Death Penalty is applied in this country, the national consensus is that nobody under the age of 16 is to sentenced to the Death Penalty. This is why I believe that in that instance the justices were putting their moral view above the moral view of the nation.

The same-sex marriage issue is slightly different, because you don't need to establish a national consensus regarding same-sex marriage. Every State may regulate marriage how they choose, but that doesn't mean there isn't a limitation. If they are going to exclude a group from marriage, the States must have a legitimate State interest in doing so. So, the only way a Supreme Court decision regarding a particular State's marriage laws will affect the marriage laws of other States is if the same conditions exist in those other States. As it stands, it is those who oppose State marriage that appear to be imposing their moral code rather than looking to the moral code of the States. Since 1961, many State's have changed the moral view regarding homosexuality. As of Lawrence, all the states now have the same moral view regarding homosexuality: it is not immoral, because it is not illegal. There is nothing in any State's marriage laws that indicates that promoting the "traditional family" is a legitimate State interest in excluding same-sex couples. There, in fact, a few significant indicators that it isn't. There is also no indication that the legitimate State interest is related to procreation -- again, many indicators to the contrary.

Those who oppose same-sex marriage are clinging to a moral code that is no longer reflected in the laws of the State. In my opinion, any justice that uses the popular arguments against same-sex marriage, is either ill-informed or imposing their own moral code.

If you wish to challenge this opinion, please take a look at the History of Marriage thread and respond there -- I only bring these issues up here to point out that the gay marriage issue should not be lumped in with the Juvenile Death Penalty issue. They are approached and need to be approached differently by the Court. It is also an indication of how those crying "black kettle" when it comes to one issue are actually pots.

[quote - Jack22]In Catholicism, there is often less "wiggle room" with regard to certain core teachings than with many mainstream Protestant groups-- government officials who are Catholic and use their official position to defy the teachings of the Church are usually in big trouble-- excommunication is no laughing matter-- some see it as a ticket to hell[/quote]

That's very interesting, if untrue. Brennan, the only Catholic in the Supreme Court at the time of Roe v. Wade was never excommunicated despite concurring with the opinion. When New York Auxiliary Bishop Austin Vaughan, a strongly anti-abortion bishop, suggested that pro-abortion politicians receive canonical penalties at a 1989 meeting of the National Conference of Catholic Bishops, the other bishops declined to act. The president of the group stated that to do so would be counterproductive. While it is against Canon Law to procure an abortion and to do so results in automatic excommunication, promoting abortion does not violate Canon Law -- which would explain why, despite the complaints of many Catholics, pro-abortion Catholic politicians and judges have never been excommunicated in the United States.

I was waiting for you to answer your own questions before I responded here, which you have to an extent done here. I partially suspected this was your motivation in starting this debate.

So let me correct some of your assumptions hayleyanne. Liberals do not have some fear of <insert religion here> judges taking the federal or the supreme court bench. If that is what your viewpoint is then you are guilty of believing all the spin coming from the right-wing noise machine.

As a matter of fact the vast majority of liberals subscribe to some form of religion including <insert religion here>. Do you think we are all agnostics and atheists or something?

I'm also quite certain that most of the Democrats in elected office subscribe to some form of religion, most likely some denomination of Christianity.

So you are incorrect about liberals having an issue with a judge being religious. What we have an issue with is a judge being put in office with an agenda. If a judge is specifically taking office to reverse some kind of decision (e.g. Roe v. Wade ) or make some kind of new decision, regardless of whether they are liberal or conservative, that is a big problem. Sure I'd like to have some liberal judge appointed to office that has promised to make gay marriage legal and end this debate, but that would be wrong regardless of how much I'd like it to happen. Hopefully you see that putting a judge in office to reverse Roe is also wrong.

So to answer your question of whether this man should sit on the supreme court:

I would say that first of all items 1 to 3 while impressive are not enough for me to make my decision if I were a senator. I would want to know what his record was, how he had ruled on various issues in the past. Not because I would want to make sure I agreed with the rulings, but to make sure they were within the bounds of the law.

Items 4 to 5 are completely irrelevant in my opinion. What this man does with his own personal time is his business. I have always believed that religion was a personal affair and you are free to do what you'd like in your personal life.

And actually item #5 "5) He volunteers his time with a Catholic organization that counsels unmarried pregnant women about options other than abortion." works against your assumption that this man would seek to overturn Roe. It is commendable that he volunteers to inform women of other options, they should have as much information at their disposal as possible. The important fact here is that by approaching it this way he does realize women have a choice. If he didn't realize that he'd be one of those nuts protesting in front of abortion clinics and threatening doctors. There is absolutely nothing wrong with giving someone information about your point of view or even trying to presuade them, as long as you let them make the final decision.

What I would expect from this man is that he didn't have some agenda to reverse Roe by taking office (or any decision - Roe isn't some litmus test for me or liberals in general - But since you bring it up I'll use it as an example). If some case came before the supreme court challenging Roe I would expect him to make a ruling based on an interpretation of the law and the facts of the specific case, not what his religion dictated that he do in advance. Of course religion is one of the things that makes up ones morality when looking at evolutionary interpretation, but I would expect that like any good legal professional he would abide by the laws of the land first and his religion second.

I, like others who have posted previously, am somewhat disappointed and a bit annoyed in the rather clumsy and inelegant manner in which you have attempted to turn this thread into yet another liberal bash-fest. If you wanted to turn this into a debate over the reversal of Roe v. Wade, I wish you would have simply posed the question originally, Hayleyanne. I think you took a rather disingenous course to arrive to what your real agenda was.

To answer the original question before it morphed into it's present altered state:

1) Graduated from Harvard Law School first in his class; Editor in Chief of the Harvard Law Review; widely regarded as having a brilliant legal mind;
2) Practiced general litigation and tax law for fifteen years after which time
3) He became a federal tax court judge and has acted in that capacity for a decade and is well respected as a fair tax court judge

Number One is all well and good, but Two and Three don't impress me much. I'm not going to say that having a background as a tax court judge doesn't mean you aren't capable of ruling on the burning issues of the day, but I think it would place you at a disadvantage to a jurist who has sat on the Federal Appeals Court. A brilliant legal mind is all well and good, but I think I'd rather have a judge with their experience limited to the federal tax code heading up my law firm's corporate department and not arguing cases before the Supreme Court.

I want the best and brightest on the Supreme Court. But I also want someone who has played in the major leagues and 15 years as a tax judge doesn't quite get it.

4) He is a devout Catholic, and believes, as all devout Catholics do, that abortion is the taking of human life.
5) He volunteers his time with a Catholic organization that counsels unmarried pregnant women about options other than abortion.

I'm troubled by Four's loaded phrase, "all devout Catholics believe abortion is the taking of human life." I believe it is possible to be a devout Catholic and disagree with the teachings and dictates of the church. Gay rights, birth control and abortion are just a few of the issues where devout Catholics in America may believe differently from what the Pope says they must.

It does give the first real indication though where you were really going with this thread, Hayleyanne.

I could care less about what the judge does on his own time as long as it doesn't factor into his decisions in the courtroom. If he could reassure me that was the case and a review of his rulings verified this was so, I would have no problem voting in favor of this nominee.

Hope that doesn't throw off the curve.

Can you please explain to me how I attempted to turn this into a liberal bash fest? I really, honestly, seriously, don't get what you are saying.

The hypo was simple-- yes. But I also emphasized devout-- to get at what I later took quite a bit of time to explain-- the idea I have about moral relativism and how it relates to who we want on the bench. I put a lot of effort into trying to express this -- first with a simple hypo and then with a more detailed explanation. I don't appreciate being accused of trying to turn it into liberal bashing. Is liberal bashing, saying that liberals adhere to moral relativism? Please explain.



Nighttimer-- I can tell you, as a Catholic, and one who is NOT devout, but who knows many who are-- what I am saying is accurate. The adjective "devout" is used by Catholics to indicate exactly such beliefs.


And where would that be? If you think I wanted to turn this thread into a discussion of Roe v. Wade, you are very much mistaken.

Well, hayleyanne, you went about stating that people were sidestepping the issue before you explained what the issue really was. You didn't mention moral relativism until after you accused everyone of sidestepping the issue. You had us answering one question without explaining the context in which our answers would be viewed. Then you accused us of sidestepping an issue that had yet to be expressed. That is a bit disingenuous. You bait us with one question, then change the context and tell us we're sidestepping.

You then went on to say that the issue was not about whether a justice would uphold the constitution, but whether that justice would overturn Roe v. Wade because you feel that it has no basis in the Constitution, thereby changing this thread into a discussion about whether a judge who would overturn Roe should be allowed to sit on the bench. Making this a thread about Roe v. Wade, because in order to challenge your argument, we have to argue that Roe is based in the Constitution.

Sorry, but that is not so. While the 8th does indeed forbid "cruel and unusual punishment", it does NOT define what that is, beyond naming it. As such, it does indeed leave this definition up to the states. So, some states might forbid flogging (for example) as being "cruel and unusual"; while others might permit it for certain, specified crimes (such as assault with a whip or cat). Currently, I believe no states permit flogging as punishment (did Delaware finally repeal its law permitting flogging?). But the point is, it's up to the STATES to decide to do that, not the Federal government. Even if all states have identical laws on the subject, that doesn't give the Fed the power to make its own law.

And that is true about crimes by youths, too - or it was until the USSC stuck its nose in a few weeks ago. There is nothing in the U.S. Constitution that says penalties for youths must be different from penalties imposed on adults for a like crime. Most states have (sensibly) specified different penalties for youths, of course... as they have the authority to do, since the Constitution is silent about it. But the states also have the authority to impose the SAME penalty on a criminal youth as on a criminal adult, if it determines that it's a good idea.

Since the Constitution says nothing about different penalties for different ages or levels of maturity, it is unconstitutional for the Federal government (including the Supremes) to dictate such a difference to the states (as the Supremes just did). The authority for setting such differences lies with the state and lower governments, to impose or not impose as each state sees fit.

The 8th amendment forbids life sentences for jaywalking, and forbids six-month sentences for it too; but does not forbid a $20 ticket. But the 8th (and the rest of the Constitution) is completely silent on whether a 17-year-old should get a $10 ticket while the adult who jaywalked with him gets a $20 one. The state or city can impose two $20 tickets or one of each, at its discretion. And the Constitution is also silent on whether a youth and an adult who walk into a schoolyard with rifles, split up the kids 50/50 between them, and mow them down, should get the same penalties for equal acts, or different ones. And the Supreme Court saying that the states must punish them differently, does not change the Constitution's clear mandate (10th amendment) that such authority is reserved for the states or lower government.

Sometimes I wonder if the justices who vote for such decisions, have read the 10th amendment recently... or any of the Constitution at all. That document has been appearing in fewer and fewer of their decisions recently. But it SHOULD appear in every one of them.


No, that is not the question that should be addressed. The reason it should not, is because it already has been... back in the late 1700's when the Constitution was ratified and then Bill of Rights was added, and ever since then, continuously, when the states and the people refused to change what those documents said via amendment, despite having hundreds of years of opportunities to do so.

The Supreme Court does not (or, at least, should not) base its opinions on some "national consensus". It bases its opinions on what the law says... U.S. law, not foreign countries' law. And U.S. law is clear: the power to decide criminal penalties lies with the states and lower govts, and is forbidden to the Federal government.

Any decision otherwise is unconstitutional.

Thanks so much RJP, Hayleyanne, and anyone I missed, for bringing to my attention the liberal agenda to discredit religion/morality. I don’t know why I didn’t ask myself if church going Democrat politicians and voters were merely keeping up pretenses but I’m the wiser now.

Anyway...

You confuse me, Hayleyanne. You’re all over the map. The more you explain yourself the more confused I become. Due in part, I’m sure, to a list of compounded items we should examine that weren’t aired for consideration from the get-go.

Maybe it’s the cynic in me but if you don’t want the thread to wander into constitutional interpretation why start with religion and inject moral relativism and objectivism into the discussion? (You didn’t reference moral objectivism but relativism’s counterpoint will immediately pop into people’s heads.) If you don’t want readers to focus on Roe why preface the debate question with abortion when there are a good number of activist interpretations on both ends of the spectrum available as examples and should be accessible to someone interested in judicial activism?

Your second to last post leaves me with more questions than answers. Are you worried about judges taking a side in the culture war or siding with moral relativism? If a state passes relativist legislation like legalizing gay marriage should the judge absorb/respect the state’s “moral judgment?” If a judge is a constructionist, “textualist,” or federalist what do the judge’s morality and the state’s morality have to do with upholding or striking down laws at all? Let me clue you in on why liberals are skeptical, if not hostile, towards moral objectivism and federalism and not religion, contrary to your assumption. Moral objectivism and federalism made it possible to bar white males without land from voting, enslaved a race, ensured women would spend decades politicking for the vote, and justified southern Democrat whining about the CVA of 1967.



Are you serious? I’m almost afraid to respond, wondering if this is a reverse psychology attempt to make the wayward liberals “see the light.” I thought you were in favor of constructionists/”textualists” but now you sound more like an extreme federalist.

The USSC would not need to uphold the “moral code” in the legislation because Illinois’ compulsory Pez dispensing law for pharmacists violates the establishment clause. Similarly the USSC would not have to uphold Mississippi’s moral code either because that state’s right-to-employment law for pharmacists that refuse to sell certain drugs violates the employer's freedom of association.

And I wonder why Hugo wonders why the 1st wasn't enough for the Dred Scott court.

What you did do Hayleanne is continually accuse people of dodging (which no one did) and lack of honesty (which no one did either). I still have no clue what you are really looking for. You seem to have a hard time articulating what you are looking for.

No liberals here so far think a devout catholic being a supreme court nominee is a bad thing just as long as he rules on laws for everyone and not by the standards some of his sect (catholics) live by. We have all alluded to this "moral objectivity" and you still do not accept it because I do not think you believe liberals can be devout and in addition because you only think religiously devout people can be objectivists.

You do not hold a monopoly on devout. A catholic can be pro-choice and be devout. I remember polls on gay marriage and Catholics more then any other sect of christianity supported civil unions and supported gay marriage at a higher ratio.

It seems as if you are saying because of religious interpretation a truly "devout" catholic cannot be liberal.

This is blatantly false.

Just a look at my 2004 political almanac.

Amongst catholic governor's.

10 are democrats and 9 are republicans. Do not know any of their stances on any form of abortion.

Amongst catholic Senator's.

14 are democrats and 10 are republicans. 13 of these democrats are pro-choice and support oversee military abortions. 1 of these republican senator's does as well....Collins from Maine.

Amongst catholics in the House.

70 democrats and 53 republicans. At least 40 of these democrats were against the partial birth abortion ban. 25/26 were for the ban but 20-22 or so of these are still considered liberal. Again this isnt simply on Roe vs Wade this is just the on the topic of partial birth abortions. 1 of those republicans was also in favor of not banning partial birth abortions.

Are these people not devout in your eyes? The majority of catholics in our congress are liberals.

Over half of the catholic senators were in favor of oversees military abortions.

About half or maybe half of the catholics in the house were in favor of keeping partial birth abortions. This is just partial birth not the total issue of Roe vs Wade.

Now this is before the election. I am sure Daschle and Grey Davis were counted in on this but I do not have the newest issue. The numbers are still indicative of a liberal catholic majority in congress. I am pretty sure the change in numbers was not that drastic this past election. Just some small tweaks here and there on certain numbers but the total picture remains intact.

I think your problem is that you assume abortion falls into either category of relatism or objectivity. It is to liberals i would say an unknown issue not bound to either category.

If you wanted to know why didnt you ask us if we classified ourselves as relativists or objectvists?

Too be honest though you still would have been wrong because most liberals do not fall in either category. I personally do not believe that their are universal truths on all issues from all perspectives (especially abortion) and I also do not believe that truth is always religion/sociologically dependant. Raping your wife which is legal say in Saudi under the Wahhabbists does not boil down to sociological perception. It is absolutely wrong.

The issues simply are not that simple and the topics you site are not that simple. A
People's opinions are not stuck within the boundaries of relatism and objectivity.

That is not dodging the issue that is simply what I believe to be fact.

Kalabus wrote:



You do not know what devout Catholic means then. A devout Catholic follows the teachings of the Church. The teachings of the Church do not accept any of these things. Educate yourself.

Lesly wrote:



I am not saying there is a liberal agenda to discredit religion or morality. What I am saying is that liberals are more comfortable with a world view that embraces moral relativism. And because of this they are more comfortable with judges on the bench that hold the same view.




You are right. The thread can’t help but wander into constitutional interpretation. Because it all relates back to whether a judge can truly step back and be neutral in his interpretation of the Constitution. With the way we are fighting tooth and nail over judicial nominees—it certainly looks like we all believe they cannot.

?

I focused it on Roe because people were pretending that a devout Catholic would not cause liberals to be concerned. Some people continue to pretend that “devout” does not mean you adhere to the teachings of the Church, which is ridiculous.



I am worried about judges taking sides at all in the Culture war. Moral relativism is just one side in the culture war.



I don’t want judges picking sides. I think the safer approach is to be neutral which would mean in that example that they would absorb/respect the state’s moral judgment.




That is exactly my point. If a judge is a textualist, that judge’s morality has nothing to do with whether he would uphold or strike down the law.



I understand that. And we solved these issues via the democratic process didn’t we?



I was very serious in providing the pharmacist law as an example of a conservative court reading its own view of “morality” into the Constitution. I am not sure that the compulsory dispensing law would indeed be unconstitutional after reading through that thread. Although, it is difficult to predict these days where a court will go with this stuff.


Dred Scott is another example of judicial activism gone awry.

So you are saying that most catholics in congress are not devout then?

You are saying if you used a condom you are not devout then?

Im sorry I know many catholics who do not follow every dogmatic law.

You do not hold a monopoly on devout.

In fact you are saying most American catholics are not devout.

It must be nice being one of the annointed able to criticize the majority of catholic Americans.

Yes, I am saying that most american Catholics are not devout. It is what it is. And I don't know about me being one of the "annointed" able to criticize the majority of Catholic americans. That would be pretty ridiculous as I am not a devout Catholic myself. But I do know many who are. And the thing is -- I am not criticizing anyone, I am just stating a FACT.