Sunday, August 28, 2005
I think that Rick is probably right when he argues that the likelihood of a conflict between Roberts' religious views on abortion and his interpretation of what the Constitution properly requires is not great enough to justify sensitive inquiries into Robert's Catholicism (inquiries that should be at least somewhat disfavored because they are likely to stir up emotions and prejudices concerning other issues, etc.).
I do think, though, that it's a little more complicated than Rick's argument portrays it. Here's his money quote:
The premise for Governor Cuomo's "I can't impose my personal religious beliefs on the Constitution" is, and has been for two decades, that the Constitution actually requires an near-unlimited abortion license. But, it doesn't. If we were talking about a conflict between religious belief and, say, the requirement that Representatives have attained the age of 25 years -- if we wondered whether Roberts's religion would compel him to require the seating of a 16 year old -- then the potential for that conflict might be worth exploring. But we are not.
I.e., Roberts need not be driven by Catholic faith to reject Roe; he can (and should) reject it merely because it's an incorrect interpretation of the Constitution (unwarranted, as RIck earlier says, by "text. history, or structure"). I certainly agree with this judgment about the wrongness of Roe. But two complications.
First, the issue of stare decisis. There is some possibility that in applying his best understanding of the legal considerations concerning overruling of precedents, Roberts might conclude that there is a case for preserving Roe on stare decisis grounds, even if it was originally wrong. A senator might plausibly ask, "If you reach that conclusion as a matter of stare decisis principles, but this conflicts with the fundamentals of your faith, what will you do?" This possibility -- however unlikely -- fits with my general sense that the extent and contours of Roberts' commitment to stare decisis is the most crucial single issue in the entire upcoming hearings. (And it's a wild-card issue because theories of stare decisis are way underdeveloped compared with theories of constitutional interpretation on the merits.) Perhaps the answer in return is, "Roe is so wrong that Roberts is not going to be drawn to upholding it based on stare decisis considerations." That may be -- again, I certainly don't want to minimize the constitutional wrongness of Roe -- but it nevertheless seems to me that this is more complex than the argument as Rick puts it.
More broadly, the question put to the nominee is not precisely, "If your religious faith conflicts with what the Constitution requires, what will you do?" but rather, "If your religious faith conflicts with your best understanding of what the Constitution requires, what will you do?" What the senators want (and should want) to know is that the nominee will follow his/her best understanding of constitutional method to its logical conclusion, notwithstanding any distortion or misdirection from extra-constitutional sources. So the question is not so much whether Roe is right constitutionally (and a nominee's faith might misdirect him or her to the opposite result). The question is somewhat more subjective: whether the nominee conscientiously, after engaging in his best attempt to interpret the Constitution, would conclude it's right (but then be so misdirected). Thus my reaction is that Rick, in simply pointing out the constitutional wrongness of Roe, is not quite asking the right question; you can't smuggle in your own evaluation of the merits of the issue (however correct that evaluation is). Rather, since the question is whether the (prospective) justice's judgment would be distorted or misdirected, the question is what would Roberts conclude about Roe as a matter of constitutional interpretation. (Again, the answer may be -- and this seems probably right -- that Roberts would himself think Roe wrong, as an original matter, for the same (good) reasons that Rick offers. But again, although this may not change the ultimate conclusion, it does make the argument more complicated, it seems to me.)
Am I wrong about this, Rick or others?