How must a judge think?

[wet-rat]

Unlike us, a judge (in our form of government) is obliged to be very limited in the way he thinks about issues. He may operate in one of the following modes:

1. Openness to background. In his day-to-day life, he leans new things. He may use this knowledge someday. However, he must refrain from applying that information in such a way that he prejudges cases that may potentially fall under his jurisdiction.

2. Consideration of a case. When hearing a case, he must listen to all sides and apply his reason equally to all of the information presented in that hearing. That information includes the bounds of the law. His reason has been formed by his faith, but his faith is not an input to his reason.* In the case of a SCOTUS judge, his ruling as a judge then serves as an important input in consideration of future cases, but does not serve as a judgement of those cases. If a subsequent case is essentially identical, then that determination is a judgement independent of the first.




*For example, if a judge believes in moral relativism, then that has helped form his reason, and so he will come up with a decision like that which prevailed in Casey. However, if his reason is formed by the Catholic Faith, then such an opinion makes no sense.

[wet-rat]

This is why Scalia can not hear cases concerning "under God" in the Pledge. His speech on the subject indicates that rather than giving all sides an opportunity to formally present their case, he came to a conclusion in advance.

Even if Scalia knew that he was inclined toward a particular side, he was under an obligation to allow all (germane) sides the opportunity to speak and be heard. By giving a prejudicial speech, he indicated that certain parties would not be fairly heard.

Likewise, if a SCOTUS nominee comes right out and says that he wants to overturn Roe, then he indicates an unwillingness to allow the pro-abortion side the opportunity to argue their side. He instead indicates that he will act as a legislator.

In the confirmation hearing next month, Democrats like Schumer will try to force Roberts to prejudge cases. If Roberts says "Roe was wrongly decided," then he is the perfect judge for Schumer et al. because he may never (ethically) judge a case that includes a challenge to Roe.

Now some may suggest that we should stop the "code language" that Schumer calls a "Kabuki dance" and just accept that SCOTUS judges are really super-legislators and consider their nominations on the political issues. However, doing that makes the Republic less Democratic and will only lead to future tyranny.

[wet-rat]

Some may argue that if a jugde is precluded from forming prejudicial opinions on a case like Roe, then no good Catholic may be a judge under those rules.

I.e. in taking the job of a judge, an individual accepts certain legitimate authority and also formally recognizes certain legitimate authority of others. That recognition of separation of powers goes along with the job, and if a judge can not accept that, then he is obliged to refuse the job or resign.

Since being Catholic means accepting certain truths, does that mean that a judge can not morally operate within the bounds of his authority when those with orthogonal legitimate authority make unjust law?

On the contrary, it is permissible. A Catholic must accept the teaching that abortion is murder. However, that teaching does not concern the relation of the law to that truth. Hence, a Catholic Supreme Court Justice who may hear a case challenging Roe is tasked with determining the relation of the law, particularly the U.S. Constitution to the legality of an anti-abortion statute.

Before hearing the case, he may anticipate two possible outcomes. First, it may be held that Roe and Casey were wrongly decided. Then his moral obligation is to personally support with his personal vote in a general election candidates who will pass pro-life legislation. Or, if it were proven in court that the authors of the 14th amendment did indeed intend to create a right to abortion, then it would be his obligation to personally support amending the Constitution.

Obviously, the authors of the 14th amendment did not contemplate the abortion issue, and so no originalist judge could possibly decide in favor Roe. But Roe and Casey both were cases where judges stepped outside the bounds of their legitimate authority. The proper remedy for those specific failures of jurisprudence is the reconsideration of those questions by judges who are originalists.

That does not mean that the original intent of the framers is perfect. There are many flaws. But the proper remedy for fixing those is through the amendment process, and the initiation or execution of that process does not fall within the legitimate authority of a judge.

Different people are called to do different things, and we must morally do our legitimate duty. Recognition of the bounds of legitimate authority is consistent with Catholic teaching, and it is our duty as Catholic voters to see that officials in the various roles operate both morally and legitimately.

[David_Paul]

Has former ACLU attorney Ruth Bader Ginsberg ever recused herself from cases in which the ACLU was a party?

Has she recused herself from cases in which N.O.W.'s Legal Defense and Education Fund was involved? Ginsberg has made her support of N.O.W. and feminism very clear. So clear N.O.W. holds an annual "Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law."

[Lizzie]

Did you see where Justice Ginsberg wrote a dissent objecting to sex offender registries? She said this would cause undue humiliation on sex offenders.

[wet-rat]

Originally Posted by David_Paul

Has former ACLU attorney Ruth Bader Ginsberg ever recused herself from cases in which the ACLU was a party?

Has she recused herself from cases in which N.O.W.'s Legal Defense and Education Fund was involved? Ginsberg has made her support of N.O.W. and feminism very clear. So clear N.O.W. holds an annual "Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law."

Just because some in government operate outside their legitimate bounds and disregard their code of ethics does not meant that we all should toss the ethics rules out the window.

[David_Paul]

I don't see a requirement that justices should be muzzled.
There is nothing anywhere prohibiting them from saying whatever they want.

All I object to are that some are and some are not subject to recusing themselves.

So what if Thomas' son attended VMI? No reason for Thomas to have recused himself.

Democrats wanted Scalia to recuse himself on a case because he went duck hunting with Vice President Cheney. That is absurd.

If you want to play the "Let Democrats do what they want but hold conservatives to another standard" game, why bother voting?

[didymus]

Originally Posted by wet-rat

Some may argue that if a jugde is precluded from forming prejudicial opinions on a case like Roe, then no good Catholic may be a judge under those rules.

I.e. in taking the job of a judge, an individual accepts certain legitimate authority and also formally recognizes certain legitimate authority of others. That recognition of separation of powers goes along with the job, and if a judge can not accept that, then he is obliged to refuse the job or resign.

Since being Catholic means accepting certain truths, does that mean that a judge can not morally operate within the bounds of his authority when those with orthogonal legitimate authority make unjust law?

On the contrary, it is permissible. A Catholic must accept the teaching that abortion is murder. However, that teaching does not concern the relation of the law to that truth. Hence, a Catholic Supreme Court Justice who may hear a case challenging Roe is tasked with determining the relation of the law, particularly the U.S. Constitution to the legality of an anti-abortion statute.

The Justice's job is to interpret the Constitution (or the statute, we forget that the Court also rules on many mudane issues).

To get away from the abortion issue for a moment, the Church teaches against the death penalty, but it is clearly Constitutional (I've just appointed myself a Justice). I don't think a Catholic Justice cannot honestly rule otherwise.

Before hearing the case, he may anticipate two possible outcomes. First, it may be held that Roe and Casey were wrongly decided. Then his moral obligation is to personally support with his personal vote in a general election candidates who will pass pro-life legislation. Or, if it were proven in court that the authors of the 14th amendment did indeed intend to create a right to abortion, then it would be his obligation to personally support amending the Constitution.

Obviously, the authors of the 14th amendment did not contemplate the abortion issue, and so no originalist judge could possibly decide in favor Roe. But Roe and Casey both were cases where judges stepped outside the bounds of their legitimate authority. The proper remedy for those specific failures of jurisprudence is the reconsideration of those questions by judges who are originalists.

Even if you toss out Roe, one of the most idiotic opinions ever issued with is "emanations" and "penumbras" from the 4th, 6th and 14th Amendments, an abortion "right" could be argued in the 10th Amendment. You may remeber that Ginsberg startled a lot of folks when she said as much at her confirmation hearings.

That does not mean that the original intent of the framers is perfect. There are many flaws. But the proper remedy for fixing those is through the amendment process, and the initiation or execution of that process does not fall within the legitimate authority of a judge.

"Originalism" is a crock, just another way to let judges (conservatives this time do whatthey want. Here's a good link:
http://en.wikipedia.org/wiki/Originalism

Personally I think Scalia is right with his theory of "textualism".

Btw, once Roe is overturned we shouldn't go dancing in the streets. The issue will go back to the State legislatures which is where it belonged in the first place so there will be fifty battles to fight.

[rlg94086]

Originally Posted by didymus

To get away from the abortion issue for a moment, the Church teaches against the death penalty, but it is clearly Constitutional (I've just appointed myself a Justice). I don't think a Catholic Justice cannot honestly rule otherwise.

I think there is "wiggle room" on this issue. While some teaching of Bishops and Pope JPII, has called for end of the death penalty, Church teaching (ala Catechism) does not rule it out entirely.

[didymus]

Originally Posted by rlg94086

I think there is "wiggle room" on this issue. While some teaching of Bishops and Pope JPII, has called for end of the death penalty, Church teaching (ala Catechism) does not rule it out entirely.

I agree there's some (very restricted) room for Catholics to support the death penalty.
But what I was trying to say was that if there were a clear conflict between a constitutional law and Catholic teaching Roberts, as a judge, would have to uphold it or refuse to vote.

[rlg94086]

Originally Posted by didymus

I agree there's some (very restricted) room for Catholics to support the death penalty.
But what I was trying to say was that if there were a clear conflict between a constitutional law and Catholic teaching Roberts, as a judge, would have to uphold it or refuse to vote.

Here we agree. I believe as a Judge, there are some cases where he could also distinguish between constitutional law and individual conscience. In other words, just because our law allows something, doesn't mean an individual must do it. Nor do all immoral acts need to be outlawed.