Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, August 28, 2004

Partial-Birth Abortion and the Catholic Judge (cont'd)

In response to my post below, Fr. Bill Dailey, a priest and 2L at Columbia Law School, offers the following defense of Judge Casey's ruling:

My own sense . . . is that this judge got it right: I do not favor recusal because it suggests that Catholics can only be partial participants in a democracy (I think Scalia had it wrong when he argued that Catholic judges who believed the death penalty wrong were in a similar bind). As you note, this judge made it clear what he felt the facts of the matter were, and those with ears to hear would probably infer that he thought the law needed to change. But, for those like me who think that Roe et al. were legally as well as morally erroneous, it would be unsatisfying to get the morality right while getting the law wrong. (And, given the current composition of the Supreme Court, it would only give them the chance further to reinforce Stenberg).

It is not clear to me, some days, whether I should, as a citizen, be doing much more in the way of civil disobedience or public demonstration to stop abortion. But I'm not sure a greater burden rests upon judges because of their proximity to certain elements of the abortion regime. . . . the circumstance of the judge doesn't strike me as requiring dishonesty or law-breaking (which I regard bad judging to be) on her part simply because of potential gain to be had by getting the "right result." Thus, the pro-life judge shares the same obligation as any of us to respond to God's call to live in such a way that by our actions we preach the gospel of life. I tremble at how well I do and do not do that as a priest on the Upper West Side of Manhattan each day, but I don't think judges have a particular burden greater than my own to acquit.

You can also check out Times and Seasons for some provocative commentary on Congress's refusal to add a health exception to the ban (an exception that threatens to swallow the ban, as that blog's readers ably point out).



Vischer, Rob | Permalink

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» Judge Not, Lest Ye Be Judged? from Aurochs and Angels
Rob Vischer at the splendid Mirror of Justice considers (here and here) the case of Judge Richard Conway Casey, the federal judge who is both a Catholic and the author of a recent opinion striking down the partial-birth abortion ban [Read More]

Tracked on Aug 29, 2004 3:41:13 AM