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It has come to light that Judge John G. Roberts Jr. our stealth U.S. Supreme Court nominee, gave advice to advocates for gay rights a decade ago, helping them to win a landmark 1996, Romer vs. Evans ruling, protecting gays from state-sanction discrimination. Roberts provided invaluable strategic guidance working pro-bono to formulate legal theories and coach them into moot court actions.
In the last few days, I have posted a few comments on the Volokh Conspiracy blog, run by Eugene Volokh, a Professor at UCLA, and a one time clerk for Supreme Court Justice Sandra Day O'Connor, (Robert's possible predecessor), challenging Judge Roberts' nomination, as well as having a strong view on the subject in my previous post on 27th July 'Judge Roberts governed by Faith or Oath?' And I don't deny that there are still a few crucial issues facing him which he may or may not resolve. But I am beginning to like him, the more I hear that he has views which cannot be all immediately slotted into the common agenda for either political side. That in my mind is the true spirit of a highly educated conservative, whose views become more liberal by the sheer virtue of having gained a broader knowledge, resulting in perhaps less extreme judgments.
Whether I agree with the pro or anti-gay rights is
irrelevant. Setting aside the entire Media and Bloggosphere population'
s attempt to draw conclusions from his willingness to get involved in a
landmark gay rights case a decade ago,
one needs to acknowledge that he would have had the age old
Catholic wrath regarding the Church''s five non-negotiables. The five
absolute non-negotiables include gay rights somewhere on top of the list between
abortion and euthanasia, and next to embryonic stem cell research and
human cloning.
Professor Bainbridge has a very interesting point which can
be summed up in two litmus test questions he would ask Roberts:
Do you believe that a Judge should recuse himself if his participation
in a particular case would constitute formal cooperation with evil?
Would you recuse yourself under such circumstances.
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Professor Bainbridge's view is interesting, but remains devoid of asking for a definition of the terms; asking how Judge Roberts would decide what constitutes absolute or intrinsic "evil", nor asking what Roberts thinks his obligations would be as a Catholic if recusal were not required in a case involving such evil. It also assumes that the Catholic Church allows for debates on the issues of what constitutes cooperation with evil on the non-negotiables. My fear is that the CC's view on the matter does not allow any room for prudential judgment, prohibition being absolute and unconditional. I in fact agree with David Giacalone's view that in those circumstances recusal would not be good enough, the CC would fully expect an active participation in such cases, that would either limit or undo such evil. And look, from a moral norm standpoint whether modern or traditional, this is quite correct, however Judges may not look to their own moral values in their decision making process. Their personal views cannot have any bearing on how they vote.
The evaluation of moral norms whether they belong to
the modern or traditional view that Prof. Bainbridge is referring to is
a very slippery slope down to the "Constitution being a living
document" (text that either court or society interpret according to
what they think it ought to mean).
Supreme Court Justice Scalia sums up the reality of the decision that
ought to be facing Roberts, when he refers to his own inability to
serve on the bench if he thought the death penalty were immoral:
"... while my views on the morality of the death penalty have nothing
to do with how I vote as a judge, they have a lot to do with whether I
can or should be a judge at all."
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Be that as it may, I still say the more I get to know Judge Roberts
the more I like him. It must be living hell to be Roberts right now.
Especially since the last onslaught of criticism and invasion of
privacy culminated in the New York Times attempting to probe into sealed adoption papers of his two young children, five year old Josie and four year old Jack, born in Latin America. Luckily, Glen Justice, the
investigative journalist handling the story is one of the incompetents
on The New York Times team, so thankfully that should crush any hope of
success in achieving any discovery of impropriety.
Roberts young son Jack delighted millions of Americans during his father's Supreme Court nomination announcment ceremony when he wouldn't stop dancing while the President and his father spoke to a national television audience.
We'll see whether he may after all be the stuff that a U.S. Supreme Court Justice should be made of. My mind remains open.
Update on 5th August at 10.30pm:
Below is the serial answer mailed out by the NYT courtesy
of a fellow blogger Hugh Hewitt :
Dear Reader,
Thanks for writing to us.
While the public editor does not usually get involved in pre-publication
matters, Bill Keller, the executive editor of the paper, told us that he
would not stand for any gratuitous reporting about the Roberts's children.
He said that as an adoptive parent he is particularly sensitive about this
issue.
In addition, a senior editor at the paper wrote, "In the case of Judge
Roberts's family, our reporters made initial inquiries about the adoptions,
as they did about many other aspects of his background. They did so with
great care, understanding the sensitivity of the issue. We did not order up
an investigation of the adoptions. We have not pursued the issue after the
initial inquiries, which detected nothing irregular about the adoptions."
Sincerely,
Joe Plambeck
Office of the Public Editor
The New York Times
Oh yeah?
Update: Check out Professor Bainbridge's site 'Mirror of Justice" and his post 'Strang on Originalism and Precedent' with this article,
by Ave Maria's Prof. Lee Strang. It should be of interest to those like myself, who
have been following the discussion about Catholic judges, stare
decisis, and cooperation with evil. Here is the abstract from "An
Originalist Theory of Precedent":
There is substantial scholarly disagreement on whether and in what manner prior decisions of the United States Supreme Court interpreting the Constitution bind it later in time. This is despite the consensus of American legal practice that prior constitutional decisions do bind later courts. At the heart of the debate surrounding precedent is the tension between our written Constitution, which is the supreme law of the land, and the role of the unelected Supreme Court in exercising constitutional judicial review. Further, the existence of numerous and important nonoriginalist precedents is used by critics of originalism as an (in their view, often decisive) argument against originalism.
In this Article I will offer a theory of constitutional precedent within an originalist framework. I will argue that a limited respect is due some nonoriginalist constitutional precedent because of the larger societal goal of effectively pursuing the common good.
I will initially describe the problem that precedent has posed for scholars and courts in the area of constitutional adjudication. First, I will explain what I mean by a theory of precedent. Second, I will briefly discuss the debate over the proper interpretative methodology of the Constitution. Third, I will show how, for any plausible theory of constitutional interpretation, there will be precedents that, under the methodology, are mistakes. Lastly, I will review attempts by originalist scholars to elucidate a theory of precedent in constitutional adjudication.
I will then lay out my theory of originalist precedent. First, I will describe the originalist interpretative methodology I am assuming for purposes of this Article. Central to the originalist methodology that I describe are the concepts of the common good and authority, and the process of making natural law effective in society. Then, I will argue that courts should not overrule nonoriginalist constitutional precedent only when overruling the precedent would gravely harm society's pursuit of the common good.
Originalism requires judges to adhere to the meaning of the text of the Constitution as it was understood when ratified. In constitutional adjudication, therefore, judges may only apply the positive law of the Constitution and may not, generally, directly apply natural law norms. By contrast, when determining whether to overrule or limit nonoriginalist precedent judges will be relatively unconstrained and will have to make those determinations by looking to what the common good of society requires. As a result, I will briefly discuss a theory of judicial virtue to account for how judges should exercise this discretion.
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