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James Taranto on Catholics in the Judiciary

This is so good I had to post the whole thing. From James Taranto of the Wall Street Journal:

No one seriously argues anymore that Roe v. Wade was correctly decided. Rather, pro-Roe advocates rest their case on policy grounds (warnings about coat alleys and back hangers, etc.) or, when they must argue the law, on the power of precedent. Of the five Supreme Court justices who more or less upheld Roe in the 1992 case of Planned Parenthood v. Casey, three went out of their way to avoid endorsing the decision, emphasizing instead the allegedly high cost of the court's admitting a mistake:

A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today.

A jaw-dropping op-ed piece in today's Boston Globe suggests that these three justices got it exactly wrong. One Christopher D. Morris, "a writer and critic in Northfield, Vt.," argues that the Senate Judiciary Committee should subject the Catholic Church, and Catholic jurists, to special scrutiny:

Catholic bishops threatened to exclude Senator John Kerry from the Eucharist because of his support for Roe v. Wade. The Senate Judiciary Committee is now fully justified in asking these bishops whether the same threats would apply to Supreme Court nominee Judge Roberts, if he were to vote to uphold Roe v. Wade.

The bishops have made this question legitimate because Americans no longer know whether a Catholic judge can hear abortion cases without an automatic conflict of interest. . . .

Asking the bishops to testify would be healthy. If they rescinded the threats made against Kerry, then Roberts would feel free to make his decision without the appearance of a conflict of interest, and Catholic politicians who support Roe v. Wade would gain renewed confidence in their advocacy. If the bishops repeated or confirmed their threats, the Senate Judiciary Committee should draft legislation calling for the automatic recusal of Catholic judges from cases citing Roe v. Wade as a precedent.

In other words, in order to preserve the bogus constitutional right to abortion, it is necessary to disregard the actual constitutional provisions for church-state separation and against religious tests for officeholders. It's yet another reason why Roe must go.

When Cuomo Made Sense
Yesterday we noted that the Roberts nomination had Mario Cuomo, on "Meet the Press" Sunday, talking like a Know Nothing, demanding to know if John Roberts would do what "the pope says." During the same show, Cuomo's interlocutor, constitutional scholar Douglas Kmiec, praised a speech Cuomo gave in 1984 at Notre Dame in which the then-governor of New York discussed the role of religion in politics. "It was eloquent," Kmiec said. "It was a wonderful presentation."

We thought Kmiec was just being polite, but when we found the speech online, we actually found a lot to agree with. Here's the 1984 Cuomo:

The same amendment of the Constitution that forbids the establishment of a State Church affirms my legal right to argue that my religious belief would serve well as an article of our universal public morality. I may use the prescribed processes of government--the legislative and executive and judicial processes--to convince my fellow citizens--Jews and Protestants and Buddhists and non-believers--that what I propose is as beneficial for them as I believe it is for me; that it is not just parochial or narrowly sectarian but fulfills a human desire for order, peace, justice, kindness, love, any of the values most of us agree are desirable even apart from their specific religious base or context. . . .

I can, if I wish, argue that the State should not fund the use of contraceptive devices not because the Pope demands it but because I think that the whole community--for the good of the whole community--should not sever sex from an openness to the creation of life.

And surely, I can, if so inclined, demand some kind of law against abortion not because my Bishops say it is wrong but because I think that the whole community, regardless of its religious beliefs, should agree on the importance of protecting life--including life in the womb, which is at the very least potentially human and should not be extinguished casually.

No law prevents us from advocating any of these things: I am free to do so.

So are the Bishops. And so is Reverend [Jerry] Falwell [a 1980s "religious right" figure].

This sounds a lot like our Wall Street Journal article from May, "Why I'm Rooting for the Religious Right." Actually, we'd add that Cuomo or anyone else is perfectly free to advocate the policies he cites on strictly sectarian grounds as well. Making the case this way is foolish, though, since America is a highly pluralistic society, and "because the pope says so" will be sufficient to persuade only some Catholics and virtually no non-Catholics.

In any case, Cuomo's position then seems at odds with the prevailing liberal position today, which is that religiously informed arguments are essentially illegitimate, at least when they lead to conservative conclusions.

God bless,
Jay