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.”

Borked! Really?

History is not what is lived; it is what is remembered. As a character in Richard Russo’s Trajectory states, “Just because I wasn’t there doesn’t mean that I can’t remember it.” But even those who were there may not remember it the way that it was lived.

The O.J. Simpson murder trial is an example. Polls the day after the verdict found that the majority of Americans thought the not-guilty verdict was right. Although a higher percentage of blacks agreed with the outcome than whites, a majority of whites also said that guilt had not been proved. TV had shown gavel-to-gavel coverage of the trial with extensive summaries in the evening, and the proceedings had been heavily watched. The day-after opinions were largely based on what the poll respondents had personally observed of the trial.

A month later, however, polls showed a different reaction to the trial. Now a majority of whites thought that the verdict was wrong while a strong majority of blacks continued to see it as right. Memories of the trial had changed not because respondents had gained more experience of the trial. Instead, they heard others, often TV pundits discussing the case, people who often had had no more experience of the trial than the respondents. But for those who had changed their minds a month after the trial, history had changed. Memories were different from what they had experienced, and the memories were based not just on the events but also had incorporated how others portrayed the events. What was “true” had changed.

I am reminded of the comedian I saw who said that someone who remembers everything has a photographic memory, but then there are those who make up memories and believe that they are true.  They have a PhotoShopic memory. To some extent, we all have PhotoShopic memories.

These thoughts popped up because we are entering a season in which we may hear the term “borked.” Merriam-Webster defines this slang word: “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.” The Oxford English Dictionary says “bork” means “to defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”

The term comes from the nomination by President Ronald Reagan of Robert Bork to the United States Supreme Court in 1987. A superficial glance showed a nominee well credentialed for the Supreme Court. After graduating from an elite law school, Bork worked at a distinguished law firm and then joined the faculty of Yale Law School where he became a famous antitrust scholar. He served four years as Solicitor General of the United States, the office that represents the federal government before the Supreme Court. A few years later, Reagan appointed him a judge for the United States Court of Appeals where he was sitting when nominated for the Supreme Court.

This c.v. made him look superbly qualified for the high court, but the Senate still rejected his nomination by a vote of 42 in favor and 58 against. A conservative story then took root. Bork was well known for his conservative views about how the Constitution should be interpreted. Conservatives maintained that until the Bork nomination, presidential nominees, especially Supreme Court nominees, were rejected only for incompetence or corruption, and Bork easily met what had been the prevailing standard for approval up until then. Bork was rejected, conservatives maintained, not because he was unqualified, but because he was a conservative. It was party politics, they claimed, in an area that had previously been free of partisan politics, that prevented Bork from being confirmed. And it was ugly partisan politics. Conservatives claimed that the opposition campaign to Bork was filled with slanders, vilifications, and irrelevancies. Bork lost the nomination because he was “borked.”

Many accept this “history,” including friends of mine who recently said that the Democrats without precedent politicized the Supreme Court nomination process with Bork and that Bork was treated unfairly. Their implication is that Bork should have been confirmed. This made me wonder about my own “history” of that nomination. I remember that I was opposed to Bork’s elevation to the Supreme Court, and, not surprisingly, I thought that I had good reasons for that position. I also remembered that friends and mentors of mine who had been colleagues of Bork also opposed his nomination. Were these people whom I respected simply accepting calumnies or being anti-conservative partisans in thinking Bork was not fit for the Supreme Court? Was I?

To gain perspective I re-read Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America. I had read the book shortly after it was published in1989. It was updated in 2007, and it was this newer edition that I now read. Battle for Justice was what I remembered it to be—a well-researched, dispassionate account of the nomination fight. And I was confirmed in my memory. There were compelling reasons to oppose Robert Bork’s nomination to the Supreme Court. (What follows is largely drawn from, and sometimes paraphrases, Bronner’s book.)

 

(Continued on September 5)

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