This is in from TIME.
You might go back and review this entry before reading ahead.
My emphases and comments.
Friday, Feb. 20, 2009
Catholic Judges and Abortion: Did the Pope Set New Rules?
By Douglas W. Kmiec
Much has been made of the statement on abortion that Pope Benedict XVI issued earlier this week after meeting with Nancy Pelosi. But the Vatican’s choice of words as they related to the Speaker of the House was quite predictable, [I don’t know… I wasn’t sure any remarks would come from the Vatican.] given her pro-choice stance and her position as a high-ranking Catholic Democrat. The Holy Father simply made clear their differences on the issue and reminded the American politician of her responsibilities as a Catholic to protect life "at all stages of its development." [Notice how he framed that? He put that in such a way as to make it sound as if the Pope simply agreed to disagree with Nancy Pelosi. They just "differ" with each other.]
What was quite surprising, and overlooked, had to do with a different branch of the U.S. government. If you read it carefully, the statement is actually quite radical [? Let’s see where he goes with this.] — perhaps unintentionally so. The brief message — just two short paragraphs — draws no distinction between the moral duties of Catholic policymakers and Catholic judges to work against abortion. (See pictures of Pope Benedict XVI’s trip to America.) [hmmm…. why would Catholic teaching not apply also to Catholic judges who advance abortion rights?]
As a lifelong Catholic, Pelosi could not feign surprise at being called upon by the Church to use her gift for persuasion to restrict abortion legislatively, or at least not to be its advocate. But until now, the Church had not formally instructed judges in a similar fashion. [Okayyyy…. but, should the Church have to? Perhaps judges haven’t been on the radar screen as much unless they are high profile positions, such as SCOTUS.] As written, the Pope’s statement has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists and perhaps all other Catholics who sit on the bench in the lower federal and state courts. [You see what Kmiec is doing here, right? He is basically saying, back off pro-abortion politicians or you will have to also pressure your darling originalist (strict interpretation) Justices. Watch where he goes.]
"His Holiness," the statement read, "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." (See the top 10 religion stories of 2008.)
To get a sense of just how sharp a break with the past this is, all one has to do is take a look at what Supreme Court Justice Antonin Scalia, himself a Roman Catholic, wrote in 2002 in an essay in First Things. "[Abortion involves] … private individuals whom the state has decided not to restrain. One may argue (as many do) that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws society has failed to enact," he wrote. "Thus, my difficulty with Roe v. Wade is a legal rather than a moral one … [I]f a state were to permit abortion on demand, I would — and could in good conscience — vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter."
Until the Pelosi statement, the prior instruction from the Church’s Congregation of the Doctrine of the Faith and encyclical writing seemed to confirm Scalia’s reasoning. There was an implicit understanding that the Church’s admonition to its faithful to change the law permitting the choice of abortion had to be understood and applied in light of the scope of office. Catholic legislators make policy and could be so instructed, but judges, as Scalia wrote, had "no moral responsibility for the laws [their] nation has failed to enact."
It is, of course, quite possible that the Holy Father was not intending to impose a new moral duty on Catholic jurists at all, and that in the rush of the event, someone in the Vatican press office mistakenly included the judicial terminology. But taken at its word, the Pope’s new admonition to "jurists" to undertake an activist, law-changing role suggests that the concept of Originalism (adhering to the textual meaning of laws at the time of adoption) subscribed to by Scalia and often by three of the four other Catholics on the Supreme Court (Clarence Thomas, Samuel Alito and John Roberts) is a morally deficient method of constitutional interpretation. [So, Kmiec is using the Holy See’s statement about the Pelosi visit to attack an originalist interpretation of the Constitution.]
No doubt Scalia would insist that since abortion is not in the constitutional text, disavowing an abortion right would square Scalia and the other Catholic jurists with the Church. But not so fast; Scalia says abortion can be legislatively permitted or not as the people choose, and he will enforce whatever is democratically chosen. That’s hardly what the Church is hoping from Catholic jurists, is it?
If the Holy Father is pointedly telling not only Congresswoman Pelosi but also judges that they must use their office to undo the legal protection for abortion, how is this consistent with their judicial oath, or with the fact that the Constitution in Article VI puts religious belief off-limits for selection or qualification for office, including judicial office? In particular, precisely what is a Catholic jurist to do when confronted with the application of laws restricting abortion that, as interpreted by the courts in rulings like Roe v. Wade, would be unconstitutional? If a Catholic judge invalidated laws restricting abortion in conformity with the constitutional precedent, he or she would presumably be cooperating with the evil of abortion. On the other hand, [here it comes] if a Catholic judge ignored the precedent — perhaps seeking to avoid Church sanction, such as the threats of communion denial aimed at pro-choice Catholic lawmakers by some bishops in the past election [Kmiec’s big problem, it seems.] — there would likely be increasing claims of religious bias.
In 2002, when discussing the death penalty and his faith, Scalia expressed relief that the Church had yet to find the death penalty categorically immoral since that was neither his personal conclusion nor the Originalist position on the Constitution. "I like my job, and would rather not resign," he wrote in 2002. "[I]n my view, the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty — and if that fails, lead a revolution. But rewrite the laws he cannot do."
Why does Scalia recognize a duty to resign were the law of the Constitution dealing with the death penalty to become inescapably at odds with Catholic teaching, but not in like circumstance for abortion? [Can he know that Justice Scalia doesn’t think that about abortion?] For Scalia, it is the difference between two qualitatively different constitutional claims — a textual one (the death penalty being clearly anticipated by the Constitution) and a nontextual one (abortion). But under Rome’s new direction to jurists [For a guy who wants to drill into an issue, how is it that he is so sloppy with his categories at this point? He calls the statement released by the Vatican Press Office "Rome’s new direction". But the Holy See has proper means and instruments for giving "direction" to jurists. And that means isn’t going to be a press release! Did that escape Kmiec’s notice? Or has the change to attack Justice Scalia gotten him all excited?] to get busy correcting the law, that interpretative nicety won’t cut it. The duty for Scalia and the other Catholic jurists turns on what faith requires, not what the text does or does not explicitly say. No more Pontius Pilate. [In case you missed it, Kmiec just likened the Catholic Justice Scalia to Pilate.]
Might there be a different, less intrusive course for the Church? [Doug to the recuse!] Yes: clarify the Pelosi statement by continuing to observe the difference between a jurist and a legislator. [?] That may be awkward from the standpoint of the unyielding lines of moral rather than political principle, but it has the merit of following the instruction of St. Thomas Aquinas, who argued that "all should have some part in the government; for in this way peace is preserved among the people, and all are pleased with such a disposition of things and maintain it." [I am not sure how that quote of the Angelic Doctor actually supports what he is saying. Maybe a well-trained Thomist can fill us in.]
Few are pleased with the abortion jurisprudence as it is. But imposing moral duties on Catholic jurists that are incompatible with their envisioned judicial role in a democracy is hardly likely to make it better. [Why? Does Kmiec believe jurists shouldn’t be expected to make judgments also based on God’s law? Are jurist to adhere only to man’s positive law? Is he telling the Holy See that it should says jurists need not consider the Church’s moral teaching.]
Kmiec is chair and professor of constitutional law at Pepperdine University and author of Can a Catholic Support Him? Asking the Big Question about Barack Obama (Overlook/Penguin 2008).
What is this really all about?
It could be that this is really a message to the Obama Administration about what sort of input he, Kmiec, would offer to the Holy See when future stick situations arise… if only he, Kmiec, were to be selected as the next… say… perhaps…. Ambassador to the Holy See? Maybe?