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.

Friday, September 30, 2016

Some thoughts on Michael Peppard's "Final Thought in the Voting Booth"

Michael Peppard has a thoughtful post at dotCommonweal called "My Final Thought in the Voting Booth," in which he (among other things) works through his thought process with respect to selecting a candidate in the upcoming (RG: horrifyingly awful) presidential election.  As he notes - and as many of us here at MOJ have been noting for now four election cycles! --  "Faithful, informed Catholics in the United States are, in the words of John Carr, “politically homeless.” Anyone with even a passing knowledge of Catholic social teaching and the American political landscape can see this."

It's a detailed piece, but I want to engage, and push back against, just one part:

What then should I ask myself in that voting booth? What examination of conscience honors Catholic teaching and the realities of American power? I first ask myself not what are the most important issues to me, but what are the most important issues of a particular election to a particular office. Second, I determine whether a particular issue is realistically within a particular candidate’s sphere of influence. Then, if still undecided, I have one ultimate question that always works.

The main issues of this presidential election season are, in no particular order: the economy, and whether or how to resolve its inequities; racist violence and concomitant social tensions; the plight of migrants; religious liberty in conflict with civil rights; and the ever-present question of how American military power is used or not.

But not all of these are within a president’s sphere of influence to the same degree. For example, the current conflicts of religious liberty with civil rights—whether those relating to same-sex marriage or the rights of minority religions—are going to be worked out over years and decades through our judicial system. A president’s power to affect these decisions is several degrees removed: the process of judicial openings, legislative approval, the emergence of relevant cases, and the final decisions are almost entirely outside a president’s sphere of influence, especially on just a four-year time table.

The first paragraph, in my view, is exactly right, and it's a point that's so often overlooked, in many ways.  (For example, so many voters are unaware of how power is actually exercised in the House of Representatives -- i.e., in and through committees, closely bounded by seniority and party.)  The second paragraph, regarding "main issues", could be argued about.  Certainly the listed issues are important, but I would say that the challenges of unsustainable entitlement programs and public-pensions are right up there.  But put that aside.

With respect to the third paragraph, I'm afraid that this claim is wrong:

For example, the current conflicts of religious liberty with civil rights—whether those relating to same-sex marriage or the rights of minority religions—are going to be worked out over years and decades through our judicial system. A president’s power to affect these decisions is several degrees removed: the process of judicial openings, legislative approval, the emergence of relevant cases, and the final decisions are almost entirely outside a president’s sphere of influence, especially on just a four-year time table.

As I discussed a bit in my own election-related essay in Commonweal:

More important than a party’s platform, however, are an administration’s personnel. A Clinton administration will be carefully staffed with well-credentialed, competent, ideologically motivated people. They will interpret regulations, enforce rules, exercise discretion, and control funds in a wide range of consequential departments and agencies. In the modern administrative state, and particularly after President Obama’s embrace of an expansive view of executive power and regulatory authority, this is where the action is.

And so, whether or not the Democrats control Congress, committed but largely unaccountable activists, lawyers, and think-tankers will aggressively and creatively use a variety of tools, including litigation, accreditation, licensing, contracting conditions, funding-eligibility determinations, and “Dear Colleague” letters, to pursue their goals. I expect they will do what they can—which is a lot—to undermine or overturn reasonable limits on abortion, remove barriers to and increase support for embryo-destructive research and physician-assisted suicide, hamstring school-choice and education-reform efforts, narrow the sphere of religious freedom, and continue divisive “culture wars” campaigns.

To be clear, I understand that and why a faithful, informed Catholic like Michael could conclude that, all things considered, the best course is to vote for Mrs. Clinton.  (I do not believe that any informed person should cast such a vote without at least acknowledging, rather than ignoring, evading, or minimizing, Mrs. Clinton's very and unusually serious flaws in character and judgment.)  But, if one is going to go through the (reasonable) process that Michael outlines, one cannot -- consistent with the realities of American government -- do so well if one assumes that the President and his/her appointees -- and the Executive branch and administrative state more generally -- in the DOE, DOD, DOJ, HHS, etc. are not directly and crucially involved in the religious-liberty struggle.  Indeed, they matter more, really, than do the members of Congress.  

https://mirrorofjustice.blogs.com/mirrorofjustice/2016/09/some-thoughts-on-michael-peppards-final-thought-in-the-voting-booth.html

Garnett, Rick | Permalink