The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Wednesday, August 10, 2005
An op-ed piece in yesterday's Boston Globe suggested that Catholic judges should be disqualified from hearing abortion-rights cases.

The author, one Christopher Morris, points out that during the last election, certain Catholic bishops suggested that the Eucharist ought to be withheld from John Kerry because of his political support for abortion. As I understand it, this is consistent with the Catholic Church's position that politicians may not support abortion rights, as this purportedly denies justice to the unborn.

Morris goes on to say that the bishops ought to be asked whether the same threat of denial of communion would apply to a federal judge who refused to overrule Roe v. Wade and its line of cases -- and then seems to assume that it would.

The problem with Morris's logic is that he misunderstands the essential difference that there is supposed to be between a legislator and a judge -- which isn't surprising, since an awful lot of political liberals don't seem to see much difference.

Without passing judgment on whether the Catholic Church is right to make a Catholic legislator's political position on abortion a criterion for judging his faithfulness, it seems unlikely that a legislator and a judge would be treated the same way. A legislator has discretion as to what laws he promotes. In constitutional law, the function of a judge, on the other hand, is to say what the law is. A judge is not empowered to hand down any decision he pleases: if the law says one thing, that's what the judge has to say. Given the Catholic Church's emphasis on free will, it's hard to see how the Church would deem a judge's application of a constitution that supposedly contained a right to abortion to be an act of willful wickedness.

Morris can be forgiven for assuming that a judge has the same discretion as a politician to allow or forbid abortion, since more and more of the social-liberal agenda is being advanced by judges acting as politicians, declaring the Constitution to contain mandates to allow this or that despite the manifest absence of any such constitutional content. The whole "privacy" line of cases beginning with the Griswold decision and running through Roe, Casey, and Lawrence are glaring examples of what happens when judges begin with the decision in mind and work backwards to come up with arguments (however facile) to support the preordained conclusion.

But that's not the way the Constitution is supposed to work, and with any luck and the appointment of a few more honest jurists, it will stop working that way.


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