Roberts’ faith is not the issue

So far, the American news media’s debate and commentary on the nomination of Judge John G. Roberts Jr.’s nomination to the U.S. Supreme Court has produced more red herrings than a fish market fire.

None of these smells worse than the attempts at both ends of the ideological spectrum to make an issue of the nominee’s Roman Catholicism. On the right are various evangelical activists and cultural conservatives who insist that any objection to Roberts’ confirmation or mention of his Roman Catholicism amounts to religious bigotry and the imposition of a constitutionally prohibited “religious test” for office. On the other side are various left-wing special-interest groups who seem to be arguing that his faith precludes any independent thought on his part.

Both views have been given free access to the chat shows and op-ed pages, and both are pernicious nonsense. The evangelical activists and their GOP fellow travelers have presided over the virtual sacralization of our politics and are without standing to raise an objection to anyone discussing religion at this point. Moreover, four of the Democratic senators most likely to question Roberts closely when he appears before the Judiciary Committee -- Edward M. Kennedy, Joseph R. Biden Jr., Patrick J. Leahy and Richard J. Durbin -- are Roman Catholics.

As far as the left-wing critics go, is it really their position that the three Catholics already on the court -- Antonin Scalia, Clarence Thomas and Anthony M. Kennedy -- always vote in unison? Obviously not, so what is this really about? In fact, what precisely is it that Catholicism is supposed to predict in judicial behavior?

William J. Brennan Jr., the lion of the Warren Court, was a Roman Catholic, but so was Roger B. Taney, who as chief justice wrote the most abominable decision ever handed down by the court in the Dred Scott case.

Does that mean the upcoming Senate hearings and the discussion surrounding them can’t take an anti-Catholic and irrelevant turn?

Of course, they could -- if they degenerate into a constitutionally impermissible inquisition into Roberts’ private religious views or a vulgar series of litmus test questions to which flat yes or no answers are demanded or grant a deterministic finality to every single thing he ever said or wrote at whatever stage of his life.

Friday, in reporting the contents of the most recently released cache of documents from the young Roberts’ service as a legal advisor to President Reagan, the Washington Post chose to emphasize his opposition to legally expanding women’s rights. At one point, the Post noted in its opening paragraph, Roberts wrote a memo wondering “whether encouraging homemakers to become lawyers contributes to the common good.” The phrase, “common good,” is a bedrock fixture of Catholic social thinking. So, is the sentiment an expression of his religious faith?

By contrast, the Los Angeles Times’ reporters looked at the same memoranda and felt they portrayed Roberts as a remarkably steadfast opponent of commercializing or in any way cheapening the presidency, even when the pressure to do so came from Reagan’s friends. At one point, Roberts urged deletion from a campaign speech of a line that called the United States “the greatest nation God ever created.” The young lawyer dryly noted, “According to Genesis, God creates things like the heavens and the earth, and the birds and the fishes, but not nations.” In our piety-besotted times, that common sense seems a breath of fresh air. Was it a consequence of his Catholic faith?

In the end, does any of it infallibly -- or even reliably -- predict his performance as a Supreme Court justice?

Consider the case of the court’s first Catholic member, Taney: When his wealthy parents died and left him their slaves, he freed them all and paid those too old to find work lifetime pensions from his own pocket. In 1819, he won the acquittal of Jacob Gruber, a Methodist minister charged with inciting servile insurrection by denouncing slavery during a camp meeting. During his opening statement in that case, Taney called slavery “a blot on our national character.”

Thirty-eight years later, in the Dred Scott decision, Taney argued that the Constitution’s authors believed African Americans were “beings of an inferior order, and altogether unfit to associate with the white race ... and so far inferior that they had no rights which the white man was bound to respect.”

Which of these events revealed the “real” Taney and which -- if any -- derived from his Catholicism?

Applying a principle

Can such a question be answered precisely, even in our own era? Not unless it takes into account the church’s recognition that application of its moral teachings entails nuance and latitude. In the matter of Roberts’ nomination, for example, the relevant point is not what the Catholic Church teaches about abortion -- we all know that -- or anything else, for that matter, but how it urges its members to apply the principle.

UCLA law professor Stephen Bainbridge, who writes about Catholic social thought with great precision, recently noted that the Vatican document most relevant to the questions that have arisen concerning Roberts is its “Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life.” When it comes to both the political and judicial spheres, Bainbridge wrote in his blog (www.professorbainbridge.com), “the Church distinguishes between formal and material cooperation with evil.”

Formal cooperation, as the doctrinal note defines it, occurs when a person “gives consent to the evil action of another (the actor). Here the cooperator shares the same intention as the actor.” Material cooperation occurs when “a cooperator performs an action that itself is not evil, but in so doing helps the actor perform another evil action. The moral quality of material cooperation depends upon how close the act of the cooperator is to the evil action, and whether there is a proportionate reason for performing the action.”

A little more than a year ago, then-Cardinal Joseph Ratzinger, now Pope Benedict XVI, elaborated on the note by writing, “When a Catholic does not share a candidate’s stand in favor of abortion and/or euthanasia, but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons.”

As Bainbridge -- whose personal politics are conservative, generally Republican -- wrote, “Judicial decision making, even with respect to issues like abortion and euthanasia that raise moral questions under Church teaching, does not per se constitute formal cooperation with evil.”

The relevant and permissible questions to be asked of Roberts, Bainbridge convincingly argues, have to do with his judicial philosophy. His convictions regarding theology or his relationship with the Catholic Church are outside the reach and, frankly, the competence of the U.S. Senate and the overwhelming majority of media commentators, right and left.

The bargain-basement commissars and litmus test pimps who infest our nation’s op-ed pages with their demands that the rest of the world march in lock step with the checklist morality are similarly unhelpful here.

As the English barrister and writer John Mortimer recently urged, “Avoid those whose views on every subject can be confidently predicted after you have discovered what they think about one. You know, with some people who utter dire threats about global warming, for instance, that they are going to be hostile to smokers, motor cars, jokes about mothers-in-law, school nativity plays, strip shows and the swallowing of live oysters. Equally tedious are those who complain about high taxes and are bound to be in favor of the death penalty, take a tough line on asylum seekers and are hostile to gay weddings....”

That’s good advice when it comes to selecting companions -- and Supreme Court justices.