The Supreme Court confirmation hearings were pretty partisan, but they were civilised with each side trying their hardest to ensure that their argument prevailed. This seemed to raise rather than lower the standard of debate.
What do the labels mean?
It is tempting to think that the battle for the Supreme Court is a battle between left and right, Democrats and Republicans or, self-styled progressives versus conservatives, with each side wanting to use the court to promote its own policies. This is not the case.
Broadly, the “progressive” position is that they wish to use the Supreme Court to make the constitution dynamic and thereby to shape the law. Abortion, for example, became a nationwide right in the US through the dynamic application of the idea of the right to privacy. An alternative progressive position argues that, because men cannot be pregnant, the constitutional provision for equal treatment requires that the abortion up to birth be allowed: this was Ruth Bader Ginsburg’s position.
Judicial conservatives, on the other hand, do not seek to use the constitution to promote their own political beliefs or to make law: they seek to interpret and apply the original intentions of the framers of the constitution. This is why Amy Coney Barrett refused to answer questions at her confirmation hearing on her views about specific issues. That would have turned her into (as she put it) a legal pundit. Her position was that, whatever issue came forward she would consider it in the light of the legal and constitutional position and relevant previous cases. She further argued that, if we want to change the law, this is the responsibility of the politicians not of the judiciary: changing the law was not her job.
Judicial conservatives would go on to argue in relation to Roe versus Wade (or alternative arguments for a constitutional right to abortion) that this involves judges making law. There was no mention of abortion in the constitution or in the Equal Treatment Amendment, but, as that amendment was being passed, US states were gradually all making abortion illegal. Using that amendment to require all states to permit abortion, is, at best, making law and, at worst, inverting the intentions of the framers.
Catholics in the courtroom
This raises the question of how a Catholic judge might view tricky issues if it is accepted that the judges are interpreting law rather than making law. Abortion does not lead to any difficult problems. There would seem to be two rational positions. Justice Scalia, like Cony Barrett, a Catholic, believed that abortion should be a matter for states. The constitution does not mention abortion and therefore, he suggested, it should be regulated at state level. A second possible position is that equal treatment refers also to the unborn child and, as such, at least from a certain stage in its development, the unborn child should be protected in all states. The Equal Treatment amendment might not have mentioned the unborn child because there was no need – protection of the unborn child was the norm. According to this general position, the US constitution would either leave abortion to states or it would prohibit it.
The more difficult question of capital punishment is covered in an excellent article by David Mills. To put it slightly differently from David Mills, if somebody promotes or votes for legislation that allows gravely immoral acts in relation to the right to life, this stands full-square against Catholic teaching. However, the role of an appeal court judge is to ensure that legislators or judges in other courts have acted in accordance with the law. If the law does not accord with Catholic teaching, a judge who, in good conscience, confirms that lower courts have acted in accordance with the law is not, in a formal way, co-operating with evil.
It is the difference in view between “progressives” and conservatives about the role of the judiciary that was at the heart of a problematic interrogation by Vice President Elect, Kamala Harris, of a candidate for a lower court who was a member of the Catholic organisation the Knights of Columba. Harris made clear that she thought that Catholic views were both relevant and problematic for a candidate for the judiciary.
However, the job of a judge should be to judge and not to make law (though this pre-supposes the conservative or originalist position). Given this, it would be more appropriate to look at the character of the candidate: wisdom, integrity and, of course, justice are virtues for which we should look in judges.
And this message is relevant to other walks of life too. Whether it is scandals in the Church, the BBC, corporate scandals or corruption in public life, there must surely be at the heart of many problems a failure of character. We might also ask whether modern HR processes, as well as other processes we use to select leaders in various walks of life, are well adapted to judging a person’s character rather than their achievements, experience and technical ability.
Photo: Lucy.Sanders.999, CC BY-SA 4.0