Wednesday, July 27, 2005

catching up on roberts

so supreme court nominee john roberts is a catholic... and apparently an actively practicing one. as a former catholic myself, that fact in itself doesn't trouble me much... after all, we have some pretty prominent liberal/centrist catholics in US politics, from the kennedys to john kerry. and politically, the majority of american catholics tend to be, like the kennedys and kerry, much more liberal than the church itself.

adam at ITA analyzes the religious breakdown of the supreme court and finds that if/when roberts is confirmed, there will be four catholics on the bench, more than any other faith. this is significant, as an indicator that anti-catholic prejudice has largely subsided in modern times. it wasn't that long ago that anti-catholicism was almost as widespread as antisemitism.

but adam also points out that these supreme catholics are not liberal, like most american catholics are. scalia is even a member of the arch-conservative double-super-secret group opus dei. in global terms, these guys are conservative catholics. in american terms, they (with the possible exception of justice kennedy) are extreme-far-right catholics.

adam thinks that much of the discussion of roberts's faith is simply an excuse to find bad things to say about him. in some cases, maybe, but we don't need to discuss the man's faith to find reasons to criticize him... his record has plenty others. but michael at americablog makes a very strong point about why it might be significant:

As a Supreme Court justice and a Catholic, Roberts will be faced with issues where voting one way could expose him to refusal of Communion and even excommunication from his Church. That is extraordinary and NEW pressure that Catholics have never faced before. In the past, the Church went out of its way to dismiss as absurd any idea that Catholic politicians would be puppets of Rome. Now the Church says very explicitly that politicians MUST do as Rome says or suffer the consequences. This is a BRAND NEW situation that has never been in effect. Roberts is the FIRST Supreme Court nominee who will be put into his lifetime position with this added pressure weighing down on him.

As a Catholic myself, I could state publicly that I see my duty to the American people first and my faith second and that the bishops are wrong to insist faith must trump the Constitution. We live in a democracy, not a theocracy, and I see a great danger in placing any one faith above any other in the public sphere. I would also challenge those bishops publicly on their inconsistency -- threatening to refuse communion over abortion but not over capital punishment; having the Pope condemn a war as unjust but insisting it would be a sin to NOT vote for the president that began it and so on.

indeed, we now live in a world where prominent bishops declared that john kerry (who is in many ways a typical catholic) should be denied communion. and not just that, but the new pope seems to agree. so, would roberts be willing to defy an increasingly belligerently hardline-conservative church? even if they threaten to deny him the eucharist? (keep in mind that eucharist is not symbolic for catholics: it is literally transformed into the body/blood of christ, so denying communion is a pretty big smack in the face.) it's the same problem that ashcroft had: it's fine if you're religious, but to be good at upholding/interpreting the law, you need to choose a master: the law or the church. we know that ashcroft chose poorly, so how would roberts choose? if it's true that "he would recuse himself from cases involving abortion, the death penalty or other subjects where Catholic teaching and civil law can clash", then he will be one sucky justice, as he'll have to recuse him from the bulk of the most-important cases.

anyway, since roberts has only been an actual judge for a couple years, those who want to know a bit about him have to look elsewhere to find his paper trail. unsurprisingly, the bush administration adamantly refuses to release what are probably the most controversial parts of roberts's record. but they have released some documents:

Newly released documents show that John G. Roberts Jr. was a significant backstage player in the legal policy debates of the early Reagan administration, confidently debating older Justice Department officials and supplying them with arguments and information that they used to wage a bureaucratic struggle for the president's agenda.

Roberts presented a defense of bills in Congress that would have stripped the Supreme Court of jurisdiction over abortion, busing and school prayer cases; he argued for a narrow interpretation of Title IX, the landmark law that bars sex discrimination in intercollegiate athletic programs; and he even counseled his boss on how to tell the Rev. Martin Luther King Jr.'s widow that the administration was cutting off federal funding for the Atlanta center that bears his name.
In the rare instances revealed in the documents in which Roberts disagreed with his superiors on the proper legal course to take on major social issues of the day, he advocated a more conservative tack.

atrios pulls the most offensive quotes so i don't have to. the released documents paint a picture of a man who passionately despises roe v wade, affirmative action, equal treatment of males and females, and so on.

the docs also show that roberts is no stranger to the supreme court nomination process.

The trusted role Roberts played at the Justice Department was evident from his first day on the job when he began helping prepare Sandra Day O'Connor for her nomination to the Supreme Court. Roberts has now been nominated to succeed her.

In a memo, he outlined a plan for O'Connor not unlike the one now being undertaken on his behalf: "The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the Court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."

indeed, roberts and the bush administration are already using this tactic, as atrios eloquently puts it:

It's weird, really, that the Right wants to nominate people to the Supreme Court whose opinions are as unknown as possible and then make it impossible to know them. They've turned Roberts into Schrodinger's cat, locked him in the box, and then argued if we take a peek inside we might find out that he's a dangerous wingnut and the nomination would be killed.

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