Snippets

I was waiting for an angiogram in a room divided into cubicles by curtains. I could hear the guy next to me chattering, not to me, but to the nurse, who was taking his history. When the guy learned that the nurse was a Filipino, he became more voluble because his sister-in-law was a nurse born in the Philippines. I and anyone else in the room learned how his sister-in-law had worked in New York City at Bellevue Hospital but that she now worked at Stony Brook Hospital on Long Island. She had married into an Italian-American family, and she loved cooking Italian food. He exclaimed proudly, “You wouldn’t believe the spread she puts out on New Year’s Eve. We all go to her house. The food is so beautiful, and she makes so many dishes.” When he went off for his procedure, I was left in relative silence for an hour or more before I was wheeled off, but my neighbor-patient’s comments continued to ring in my ear. They made me feel better about America.

          New York City, along with several other jurisdictions, was named an “anarchistic jurisdiction” by the Trump administration in an effort to withhold federal funds. But I also hear from conservatives that NYC has confiscatory taxes to support its oppressively big government.  Anarchy, big government . . . if words have meanings, both terms can’t apply. Pick one epithet, not both.

          The controversy over the elevation of Amy Coney Barrett to the Supreme Court brought about hopes and concerns about the future of Roe v. Wade as well as the future of same-sex marriage and other LGBTQ rights. The future of the Affordable Care Act also hangs in the balance. This has given me pause. I know that the Supreme Court will be considering a case about the ACA, but even though I have some understanding of constitutional law, I do not know the reasons that suggest that Obamacare is unconstitutional? Do you? I don’t believe many people do, but I know that many desire its end. Why? Nearly all the complaints lodged against the healthcare law are not true. (You can check them out! Go online.) I assume that nearly all of the Republican and conservative elites know that the attacks on the ACA are canards, but they still act as if the foundations of society are crumbling because of the law. Why the adamant opposition? A recent analysis by the Congressional Budget Office may reveal why the Republican establishment wants the end of the Affordable Care Act. Tax increases designed to fund Obamacare are concentrated on the top one percent, but its benefits are spread widely among the bottom 40% of income earners. Thus, the ACA produced an income increase of 3.6% in the bottom income quintile and a 3.2% income increase in next higher income quintile. The middle quintile saw a 0.5% income increase with minor income increases up the income scale until we get to the top 1% where there was an income drop of 1.2%. Perhaps, such income redistribution above all else, explains why Paul Ryan, Trump, Mitch McConnell, and others wish to rid our country of that pernicious Affordable Care Act.

Real Americans I know have taken their six-year-old trick-or-treating. Real Americans I know have at least tried to carve a Jack-O-Lantern with their kids. And Donald J. Trump?

Let’s Get Women Off the Supreme Court

Dear Loyal Readers Who Noticed That I Did Not Keep My Usual Posting Schedule Last Week,

Last Monday I posted a longer than ordinary essay about the Supreme Court nomination of Amy Coney Barrett. Because of its length, I had planned to skip my usual Wednesday post and resume this blog on Friday, but that day passed, too, barren of my wit and wisdom. You might assume that that was because I was so wrapped up in the Senate hearings that I did not get to the keyboard. I wish that were so, but instead, some health issues had me in doctors’ offices where lasers zapped my eyes and other machines found additional problems with this aged body. In what was meant to be reassuring, the doctor said that the new problems were “repairable,” and the repair strategy, which apparently does not require the copious use of duct tape, is under way, but it all took up some of my time.

Even so, I still had many moments when I could have watched the hearings. Mostly I avoided them expecting them to be as predictable as the Perry Mason reruns on ME TV, and I gather the Senate proceedings held few, if any, surprises. In the half hour I did watch, Barrett stated that her constitutional philosophy was not to place her own values into the Constitution or to seek the original intent of those who drafted the Constitution but, as other conservative judges now say, to apply the original public meaning of the document’s words. The Constitution, she said, does not evolve but, apparently, remains frozen in the eighteenth century. To her this is necessary so that judges will be neutral and not constitutionalize their individual values and views. (I have previously discussed this thinking on this blog in “We, the People of the United States,” posted July 26, 2018, and “Originally It Was Not Originalism,” posted August 22, 2018.)

Although I did not hear her use it, her explanation reminded me of Chief Justice John Roberts’s oft-mocked metaphor that judges should be mere umpires keeping their personal predilections at bay. The contention is that judging can and should be mechanistic. Moreover, rulings that use the standard of original public meaning are desirable because such meaning can be objectively determined

My mind went whirring into the future. Twenty years from now our president is Phillip K. Dick III, a sports fan. He notes in 2040 that tennis matches have long abandoned human officials for line calls using machines instead. Baseball now registers ball and strikes without a human umpire, and footballs have chips implanted so that forward progress at the end of each play can be automatically recorded without the rather slapdash procedures of line or side judges in days of yore. Referees and umpires have moved beyond human judgments, and Dick remembers John Roberts’s words that Supreme Court judges should be like umpires. (Roberts, a mere eighty-five, is entering his thirty-fifth year of Court service.) Therefore, when Stephen Breyer dies at the age of 102 after forty-six years of service as an Associate Justice, Dick nominates a computer — which has had the Constitution, all court decisions, all dictionaries, all necessary history, and anything else that could be relevant to court decisions placed in its memory and which has been programmed to make decisions using these materials — to fill the Supreme Court vacancy. President Dick states that this will eliminate the dangerous human element from constitutional interpretation. Arnold, this device’s name, is ready to take the “seat,” but a cry goes up that Dick cannot do this. The Constitution does not allow the president to appoint non-humans to the highest court. (My imagination cannot discern the source of the cries, but presumably they don’t come from the conservative wing of the Supreme Court, consisting of Clarence Thomas at the age of 92, Samuel Alito at 90, Brett Kavanaugh at 75, Neil Gorsuch at 73, and Amy Coney Barrett at a spry 68, who all claim that they mechanically interpret the fundamental laws without invasion of human emotions.) References to Caligula are made, but a horse is a horse, of course, and Incitatus was never actually made a consul but merely a priest. This is the United States Supreme Court, Dick says, and is different. Human judgement should be removed from judging as the conservatives maintain. Justice Arnold could make decisions without emotions and biases and, therefore, is better suited for the Court than any mere human.

The humans pull out their vest-pocket-sized Constitutions and flip pages to find the controlling text: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme  Court. . . .” (We seldom notice that the Constitution does not give the president the power to appoint Supreme Court judges. The president nominates and with the Senate appoints them. The president and the Senate jointly appoint the Supreme Court.)

All sorts of linguistic tools have emerged that can be used to show how words were used in the constitutional era, but I have only bothered to look at Noah Webster’s dictionary, the compilation of which started much earlier but was first published in 1828. It says that a “judge” is a “civil officer who is invested to hear and determine” civil or criminal causes. Webster defines an “officer” as a “person commissioned or authorized to perform any public duty.” There we have it. A person. With the original public meaning, a judge in the constitutional sense is a person, and Arnold is out. (Of course, much modern constitutional law depends on the legal fiction that a corporation is a person, but that is a story for another day.)

But now the original public meaningers look a little further. Webster states that a judge is a civil officer who decides causes “according to his commission.” His. Does this word include both men and women? Not according to Webster, who defines “his” as the “possessive of he,” not “he or she.” By this analysis, a judge within the meaning of the constitution is not only a person, but a male person with a commission. People now realize that the original public meaning of “judge” in the Constitution means a man. A third of the Supreme Court must go.

Of course, the framing generation could not have meant a non-human as a Supreme Court judge. Cyborgs were not on their radar (and, of course, radar was not on their radar in 1789.) But neither was a female judge. That generation did not consciously reject women as judges; the possibility, as with non-humans, never occurred to them. Lawyers were men, and so were judges. (Some Framers may have thought of that woman lawyer, Portia, but surely they knew that in The Merchant of Venice the lying Portia came disguised as a man, Balthazar, claiming, without basis, to be a “doctor of law.”)

The original public meaning of judge in the Constitution meant a man. Shouldn’t the conservatives on the Supreme Court today read the word as it was meant in 1789?

To Save Your Soul

John F. Kennedy’s watershed speech to the Greater Houston Ministerial Association in September 1960 still reverberates. Kennedy, of course, was a Catholic, and a group of Protestant ministers that election year had promised to “oppose with all powers at our command, the election of a Catholic to the Presidency of the United States.” Norman Vincent Peale, one of the most revered clergymen in the country, headed another religious group that stated that the Catholic Church was a “political as well as a religious organization” that had frequently repudiated the sacred principle “that every man shall be free to follow the dictates of his conscience in religious matters.” Protestants and Other Americans United for the Separation of Church and State stated that it could not avoid the “fact that one church in the U.S., the largest church operating on American soil, officially supports a world-wide policy of partial union of church and state where it has the power to enforce such a policy.”

 In his masterful Houston speech, Kennedy responded:

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all. . . .

Whatever issue may come before me as president — on birth control, divorce, censorship, gambling or any other subject — I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come — and I do not concede any conflict to be even remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

Kennedy’s speech defused his “Catholic issue,” helped him win the election, and has had a lasting effect. Mainstream figures no longer question a Catholic’s fitness for the presidency. I don’t remember John Kerry’s religion being raised in a negative way at all when he ran for President, and although Trump may have suggested that Joe Biden is somehow bad for the religious, voters don’t seem to be for or against the former Vice President because he is a Catholic. Indeed, we have gone further. Polite political society tends to eschew any questions about how an office seeker’s religious beliefs might affect his governmental performance. (For example, there was little discussion of Mitt Romney’s Mormonism.) Even if, however, this is generally a good thing, there are times that we should drop this political correctness.

Perhaps the most significant development from Kennedy’s speech has been on the Supreme Court. We have not elected another Catholic as President, but the highest court, which for generations had but one Roman Catholic, now has six Catholics out of the eight justices. The conservative bloc of five are all Catholic men: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, and Amy Coney Barrett, also a Catholic, if confirmed, is expected to join those five men on the conservative wing of the Court. (On the liberal side, Sonia Sotomayor is also Catholic.) This Catholic domination of our highest court draws only a few comments as has the waning of white Anglo-Saxon Protestants on the judiciary, but, of course, it was once much different. Aristide R. Zolberg in A Nation by Design: Immigration Policy in the Fashioning of America (2008) reports that of the federal judges appointed by Harding, Coolidge, and Hoover, 170 were Protestant, 8 Catholic, and 8 Jewish. (Change came with FDR. Over a quarter of his judicial appointments were Catholic.)

 JFK, who attended public schools, maintained that his religious views were irrelevant in his quest for the White House. In that 1960 Houston speech, he stated, “I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens to be Catholic.” Even so, Protestant evangelicals opposed Kennedy. His speech may have diffused some anti-Catholic animus, but the evangelicals sixty years ago were still more than a little suspicious of a Catholic president.

The world is different today. Evangelicals today enthusiastically support Amy Coney Barrett. Their support is not in spite of her Catholicism but because of it. They assume that her religious background foretells constitutional and statutory interpretations that evangelicals and other conservatives want. Ads supporting Barrett’s nomination highlight that she is “grounded in faith” and is a “proud Christian.” What is widely reported to be her deep devotion to her religion is part of the reason she was nominated and is given as a reason she should be confirmed.

I expect, however, that she will maintain that her decisions will only be what the law and Constitution require and not because of her religion. She will in effect make a JFK-like pledge to be a secular justice in spite of what those ads and her supporters hint at. Conservatives will fulminate at any mention of religion in the confirmation hearing and suggest that questions that touch on her Catholicism would be an attack on religion that are un-American in our tolerant country. But there are questions that should be asked, and they are not an attack on religion. If, for example, a judicial candidate held a million dollars of stock in IBM, a Senator should be concerned about whether these holdings might affect the candidate’s potential decisions if IBM was a litigant before the court. Such Senatorial questions would not be an attack on the stock holding but a question about a potential conflict of interest.

Money, which can cause conflicts for judges, is a relatively trivial matter compared to concerns for devout Christians such as Barrett about immortal souls and eternal damnation. I am not a Catholic theologian, but my understanding is that the Catholic church maintains that abortion is a mortal sin, brings automatic excommunication, and, if unrepented, results in eternal damnation upon the sinner. In our country of the free exercise of religion, Barrett is entitled to those beliefs and no government official should criticize her for them. On the other hand, it is fair to ask whether those religious views would affect her secular job of being a Supreme Court Justice. Of course, state restrictions on abortions and even whether Roe v. Wade should stand may come to the court. Would Barrett be enabling others to commit a mortal sin if she believed that a pro-choice outcome was the correct legal decision? Would she herself be committing a sin by making a legal decision that goes against Church doctrine? Would she believe that she is putting her soul in jeopardy? I don’t know if the Church has ever denied sacraments to a judge because of judicial rulings, but at least some powerful Church officials have said that legislators who support pro-choice positions should be denied mass, an essential sacrament for a Roman Catholic. (Some church officials have aimed more widely than just at legislators. Last week a news story from La Crosse, Wisconsin, reported, “At St. James the Less, where the faithful eschewed masks, the Rev. James Altman denounced the Democrats. ‘You cannot be Catholic and be a Democrat, period,’ he said in a YouTube Video.”)

          Such questions are not attacking her religious beliefs but inquiring about impartiality. Can you be impartial in your judicial rulings if by your beliefs you are putting the immortal souls of others, and perhaps your own, in jeopardy? (Of course, such questions would be appropriate about issues other than Roe v. Wade and might also be asked about artificial contraception and LBGTQ rights.) And the real issue is not just impartiality, but the appearance of impartiality. A federal statute states, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The judge must not just convince herself that she is impartial, she must appear to be impartial to others.

          Barrett co-authored a law review article in 1998 that is relevant for her confirmation. She considered that our Constitution permits capital punishment but that the Catholic church finds the death penalty immoral, placing Catholic judges in a moral and legal bind. The abstract to the article states that “litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense. .  . . While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating.” The secular law may authorize a death sentence, but Barrett suggests that a Catholic judge cannot impose capital punishment and goes on to maintain that a Catholic judge should recuse herself in the death penalty.

          The law review article was about the death penalty, but it seems to be an illustration of a broader position. If a Catholic judge has to choose between the law and moral strictures as laid down by the Church, the Catholic judge must take the moral road. However, that judge can avoid the dilemma through recusal.  The judge must remove herself from a case that presents such a conflict.

          Barrett, however, might think that there is no dilemma for her when it comes to abortion. She may believe that the Constitution does not protect a woman’s right to choose, a defensible position, and therefore conclude that there is no conflict between the law and her Catholic faith. But the litigants and public are entitled not only to impartial justice but also to the appearance of impartial justice. Just as a judge may sincerely maintain that his decision favoring IBM was impartial, others may think that his stock in IBM at least subconsciously affected the decision. There are reasons to question his impartiality. Barrett may sincerely maintain that she is being impartial in finding no constitutional right protecting abortion, but others will think that her faith affected her judgment at least subconsciously.

          The Senate Judiciary Committee should explore these issues with Amy Coney Barrett. Unless Barrett addresses them in a convincing manner, her intellectual integrity will be suspect, and that is neither good for her nor the Supreme Court.

The dilemma for the Catholic Supreme Court Justice between the law and the Catholic faith on morality does not mean that Barrett’s nomination to the Supreme Court should be rejected. A judge is different from a president. John F. Kennedy pledged that if his presidential duties conflicted with his religious conscience, he would resign the presidency. A president, however, does not have the ability to avoid issues through a recusal. A Supreme Court Justice, however, can avoid having to make decisions when there is an apparent conflict between her religious and secular duties, as there is for a Catholic judge in death penalty cases.

The Senate should be asking Barrett to pledge that when she believes that a legal decision might put her soul or the souls of others in mortal jeopardy, she will recuse herself. This would not be an attack on religion, but an attempt to secure the impartiality and the appearance of impartiality of our Supreme Court.

I can hear you saying, “But the other judges were not asked to make such a pledge.” And I answer, “They should have been.”