Wednesday, February 1, 2017
So, this is 2017: A few days after issuing an incompetently executed, morally dubious, and in many ways misguided executive order on immigrants and refugees, the president nominated an outstanding and unassailable jurist to succeed Justice Antonin Scalia. . . .
It is unfortunate, in a way, that the nomination of such a fine judge comes in the context of a silly prime-time announcement ceremony, in the midst of other controversies, introduced by such a clunky, self-referential speech by the president. Judge Gorsuch is a gifted, eloquent writer and a thoughtful, careful judge. He will not regard himself as beholden to the president who nominated him but will instead, I am confident, do his best to decide in accord with the law and his own formation, education, and values. . . .
I've written a brief take for First Things on the Gorsuch nomination, "Gorsuch After Scalia."
Here's the opener:
The president’s introduction of Judge Neil Gorsuch to the nation as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia’s death gave us a lift we sorely needed. Finally, something to be at peace about in our public life.
And a bit from the middle:
In my (pre-election) Supreme Court round-up for this journal last year, “The Court After Scalia,” I suggested that “no new justices for a spell might be better than adding anyone who could make it through our rotten confirmation process.” I was wrong. Judge Gorsuch can and will make it through, and the Court will be better with him on it. The biggest reason why someone of his caliber and judicial character can get confirmed now, though, is that the balance of the Court will not be altered by his confirmation but simply reset to where it was before Justice Scalia’s death. If the next opening comes from a vacancy left by Anthony Kennedy, Stephen Breyer, or Ruth Bader Ginsburg, the wheels may yet come off the wagon.
I am delighted by the President's nomination last evening of Judge Neil Gorsuch to the Supreme Court. Judge Gorsuch and I overlapped in our service in the Bush Administration, and we have kept in occasional touch since he left DC to go on the Tenth Circuit in 2006. I've used his superb book, The Future of Assisted Suicide and Euthanasia (Princeton UP, 2006), several times when teaching seminars on bioethics issues (the book's origins are in a doctoral dissertation at Oxford under the mighty John Finnis). Among the book's many virtues (especially for teaching with it) are the ways in which Judge Gorsuch so fairly and honestly lays out the arguments on all sides of the issues he explores.
For now, I wanted also to mention an essay Judge Gorsuch contributed to a Festschrift for John Finnis. The essay takes up the important question of intention in criminal law and torts, and it is a powerful argument against utilitarian bases for liability (Gorsuch uses Richard Posner's discussion of spring gun cases such as Bird v. Holbrook and Glanville Williams's work on criminal law). A bit here:
[T]here are still other normative justifications for the special emphasis the law places on intentional conduct. One has to do with human equality. When someone intends to harm another person, Finnis encourages us to remember, “[t]he reality and fulfillment of those others is radically subjected to one’s own reality and fulfilment, or to the reality and fulfilment of some other group of persons. In intending harm, one precisely makes their loss one’s gain, or the gain of some others; one to that extent uses them up, treats them as material, as a resource.” People, no less than material, become means to another’s end. To analyze Bird v. Holbrook as the challengers to extant law would have us, we ask merely whether superior collective social consequences are produced by ruling for the plaintiff or defendant. On this account, there is nothing particularly special about the individual. Like any other input or good, it gives way whenever some competing and ostensibly more important collective social good is at stake. But it is exactly to prevent all this that the law has traditionally held, in both crime and tort, that one generally ought not choose or intend to harm another person, and that failing to observe this rule is a particularly grave wrong. This traditional rule “expresses and preserves each individual person’s…dignity…as an equal.” It recognizes that “to choose harm is the paradigmatic wrong; the exemplary instance of denial of right.” It stands as a bulwark against those who would allow the human individual to become nothing more than another commodity to be used up in aid of another’s (or others’) ends.
Neil M. Gorsuch, Intention and the Allocation of Risk, in Reason, Morality, and Law 413, 420 (John Keown and Robert P. George, eds., 2013) (citations omitted).
Monday, January 30, 2017
When it comes to religious discrimination, we Catholics have been there before in American history. We’ve been reviled as ignorant and subservient subjects of a foreign monarchy. We’ve been subjected to second-class status. We’ve been accused of undermining American values.
People of good faith will have differences of policy on national security, immigration, educational policy, etc. The need for exercise of prudential judgment in implementing such policies must be acknowledged.
But we as Catholics above all others have a moral duty to stand up against discrimination on the basis of faith, whether blatantly expressed or hidden with a thin veil.
As Professor Robert George has said, “Let us, Muslims and Christians alike, forget past quarrels and stand together for righteousness, justice, and the dignity of all.” When too many would like to divide, and when others act through ignorance or incompetence in a manner that divides us, we should choose the path of unity and solidarity.
Sunday, January 29, 2017
Why is there a strong likelihood that this weekend's chaos will repeat itself over the next four years? It's not simply about the clash of worldviews or a politically divided citizenry. We have largely learned to live with our disagreements, and I highly doubt that tougher immigration laws from President Rubio or President Kasich would've brought thousands of protesters to airport terminals and city centers. The outrage is not a product of our failure to realize that President Obama barred Iraqis in 2011, or that we've always had limits on the number of refugees admitted, or that this is what our President said he would do on the campaign trail. The outrage arises from a combination of the substantive overreaching, the background anti-Muslim rhetoric, the rushed timing, the failure to consult, the confused roll-out, and the utter failure to contextualize the EO as part of a broader story: perhaps a story of the EO as a regrettable but necessary concession to our fallen world, to be undertaken along with a redoubled commitment to care for our Muslim brothers and sisters who are here legally, along with refugees from around the world who are vetted under whatever new processes emerge. I still might disagree with such a decision on the merits, but it would be a disagreement, period. In context, the current EO feels like a repudiation of core American values. I think it boils down to a question of character, which is why I'm afraid that it's a harbinger of things to come.
As the Church has been trying to tell us for many years, the character of our leaders matters (and yes, the Church's own history sadly reflects that fact):
[R]esponsible authority . . . means authority exercised with those virtues that make it possible to put power into practice as service (patience, modesty, moderation, charity, efforts to share), an authority exercised by persons who are able to accept the common good, and not prestige or the gaining of personal advantages, as the true goal of their work.
Compendium of the Social Doctrine of the Church para. 410.
You may not think that Jimmy Carter or George H.W. Bush were effective Presidents. That's fine - reasonable people can disagree about either one. But I submit that they were good men, and their goodness made them better Presidents than they otherwise would have been.
Often during the past few years, I've heard the argument that, somehow, the Catholic bishops and other entities challenging the application of the contraception-coverage mandate were on-the-march "culture warriors" waging a misguided offensive campaign instead of pursuing compromise. As I see it, and as I've said on this blog, it was not the challengers who asked for this conflict. In any event, Michael Wear's new book, Reclaiming Hope, apparently details the cynical calculations of at least some in the previous administration who saw in the issue an opportunity to marginalize the bishops for political gain. (Mark Halperin and John Heilemann had chronicled some of this in their account of the 2012 election, Double Down.) Here's a bit from Jim Geraghty's review:
In describing the battle that erupted between the administration and the Little Sisters of the Poor over Obamacare’s contraception mandate, Wear casts himself as Cassandra. “This was not a standard disagreement between religious conservatives and a progressive White House, but instead a potentially landscape-shifting conflict-stoking move. This reality was conveyed to the highest levels of the White House repeatedly.” He claims that the administration chose “the path of most resistance” in the contraception fight as a deliberate, cynical political strategy: “A senior political advisor repeatedly thought that the bishops’ complaints would bolster a useful campaign narrative: that supporters of their view, including Republican Mitt Romney, held anachronistic views about women and family planning.’”
Unfortunately, there are more than a few reasons to think cynical attacks on Catholic bishops by prominent White House staffers will continue. . . .
Saturday, January 28, 2017
It has been two weeks of protests and counter protests here in Washington. So much energy and so much concern hang in the atmosphere. Additionally, for some of us the time between November and now has been one of reflection as to how low on the totem pole women actually are seen in America. Like many, I fear that we are all attacking symptoms of the problem, and ignoring the larger causes. In my view we create a culture awash in objectification of women, and then wonder how it is that so many could overlook repugnant treatment of women by candidates.
I shared a more in depth reflection here over at National Review Online…
January 28, 2017 | Permalink
The text of the recent Executive Order regarding immigration and refugees is available here. One provision of that Order states:
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
I tend to think that a relatively stable and prosperous country like the United States should be generous -- prudent and deliberate, but generous -- when it comes to accepting refugees, and so I am -- without, I admit, having studied the matter closely -- inclined to think the Order is, at least in some respects, misguided and bad policy. I am not sure, however, that I agree with those who are characterizing the particular provision quoted above as unfair or immoral. If we assume, as it seems to me we must, that our ability to admit refugees -- and, again, I think we can and should admit a lot of them -- is not infinite, then we are going to have to employ some criteria to identify who will be admitted and who will not. It seems, to me, reasonable and defensible to prioritize -- assuming that "prioritize" doesn't mean "categorically or reflexively reject all others" -- "refugee claims made by individuals on the basis of religious-based persecution." (I am putting aside, for now, questions about that the language regarding "minority religion in the individual's country of nationality," which, given the current givens, would probably in practice favor Christian applicants.)
I'd welcome other MOJers' views, especially President Scaperlanda's!
Friday, January 27, 2017
A few days ago, Notre Dame's Center on Civil and Human Rights convened a panel discussion on immigration and sanctuary. I participated, and talked about the religious-freedom dimension of the issue. The video is here, if you are interested. (My remarks start at about 40:00.)
Among other things, I talked about an Alabama case in which the state's Catholic bishops (and others) filed a lawsuit challenging, on religious-freedom grounds, a law that purported to forbid anyone to assist or harbor unlawful immigrants. (More here on the bishops' criticisms.)
In some quarters, the Catholic bishops' religious-freedom advocacy has been (unfairly and inaccurately, in my view) criticized as partisan or as excessively focused on a few "culture wars" issues. (The same criticisms, increasingly, are directed at religious-freedom laws generally). In fact, the USCCB's Ad Hoc Committee on Religious Freedom, like the Alabama bishops, criticized Alabama's law just as it did the contraception-coverage mandate.
I'm wondering, relatedly, whether this particular provision of the President's recent executive order on immigration similarly imposes, or could impose, an unlawful burden on religious exercise:
Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
It depends, I suppose, on how "facilitate" is interpreted. Still, something for those of us who care about religious freedom (as we all should) to keep an eye on.