Friday, April 27, 2007
My friend Eric Claeys (SLU / George Mason) wonders if Eduardo, Michael, and I (see below) are "talking past each other" in our recent posts about Catholic judges. Here's what he writes:
I've been reading your exchange with Michael Perry and Eduardo Penalver about the recent SCt death penalty cases and the Catholic Church's teaching. Thus far, it's seemed to me that the three of you are talking past each other. . . . Reading between the lines, I think Eduardo and Michael are assuming that Supreme Court Justices should incorporate the Catechism's teaching on the death penalty relatively directly into their analysis of the merits of the questions presented.I read you to be assuming that the Catechism's teaching plays a relatively remote role in federal habeas, for reasons having to do with federal-state comity, the functions of appellate review, and rule-of-law respect for the habeas statutes
This difference is important, because it relates to a more general question how prudential Church teachings apply to different actors in a government with separated or specialized offices. So, to each of you: How should a Catholic federal appellate judge reconcile his religious and his legal obligations when procedural rules and habeas statutes focus the merits of an appeal on considerations that, from the Catechism's standpoint, seem not particularly important -- or even irrelevant to the basic question of justice? Inquiring minds want to know.
I think Michael might actually have been saying something a *bit* different -- i.e, not so much that the Catechism should inform the "merits" of the technical question presented but that it should inform a judge's decision about how to vote in cases of genuine, reasonable uncertainty about the legal merits of the question presented. Michael?