Wednesday, October 21, 2020
In this staff editorial, the National Catholic Reporter team advances the strange notion that Judge Barrett's nomination should be rejected because of her alleged "moral relativism." (The charge is strange, in part, because it circulates with another set of wrongheaded attacks on Barrett, i.e., those that claim she will aggressively impose "her morality" on others and on legal questions. Chesterton would enjoy this spectacle, I guess.)
To paraphrase the wise Inigo Montoya, that word does not mean what the NCR writers think it means.
Contrary to the editorial writers' charge, there is nothing "morally relativistic" about, e.g., declining to answer unlettered senators' bad-faith questions having to do with their various hobby-horses (Dark Money! The Shadow Docket!) or about political figures, policy questions, and matters that are, or are very likely to be, the subject of litigation. All nominees decline to answer such questions and -- although there is room for disagreement at the margins -- this declining is generally required by judicial-ethics canons. Barrett never suggested that the questions she was declining to answer do not have answers, or that the answers to them do not matter. She (quite appropriately, even if it interfered with the senators' made-for-TV antics) simply noted that it's not appropriate for a judicial nominee to answer them.
In addition, the NCR editorial echoes and proposes a common mistake, namely, that it is somehow "relativistic" for a federal judge to insist that federal judges are not authorized or selected to supply the law's moral content or to resolve moral disputes. (Justice Scalia was also often on the receiving end of this kind of thing.) A judge with the judicial philosophy that Judge Barrett espouses does not think that "morality is relative", or that it doesn't matter if our laws reflect sound morality or not, or that it is not important that the correct answers be supplied to moral questions. Such a judge simply thinks, again, that politically accountable actors (this side of Heaven) are those best and most legitimately situated to make the trade-offs, compromises, and close-calls that human law-making necessarily involves and that the job of a judge is to try to figure out which calls the politically accountable actors actually made.
Now, the NCR piece is unsigned, but it is consonant, in themes and in tone, with some claims that NCR's Michael Sean Winters has been advancing for years -- about "originalism", constitutional interpretation, etc. -- and that are also, in my view, mistaken. Among other things, Winters seems to think that "originalists" adopt the interpretive methodology they do because of some imagined moral authority or superior character possessed by the "Founders" or by the Founding generation, many of whom, Winters will sometimes remind us, were anti-Catholic. Yes, many were. But, of course, the case for "originalism" has nothing to do with these actors' character and insight. It is much more prosaic: In a democracy, the judicially enforceable content of positive law is fixed by the understanding of those who enacted the law. To depart from that understanding is to re-make law and, when federal judges do that, they are acting outside of what We the People authorized them to do authorization.
Back to the NCR anti-Barrett editorial: It states (among other things), "[i]n her commitment to originalism and textualism, she claims not to be interpreting the law or the Constitution at all." This is quite odd. The entire point of interpretive methods (other than the "do what you think is right for those litigants you find most sympathetic" method that the editorial writers appear to endorse) is that they are methods of interpretation. The aim of these methods is to identify the semantic and judicially enforceable content of positive law.
Judge Barrett should, and I hope will, be confirmed. I know her well, and admire her a great deal. It is disappointing that, regardless of its opposition to the nominating president or its frustration with the state of our judicial-nominations process, a Catholic periodical would push such implausible lines of attack.
UPDATE: A longtime reader and MOJ-friend writes in, with this: "It is ironic that the National Catholic Reporter would attack the notion that whatever else a text does, it has a meaning within the context that it is written, a meaning that can be discerned by careful historical scholarship, a meaning that is particularly important to discern in a text that bears upon how we conduct our lives today. After all, the entire field of contemporary historical biblical studies is based upon that thesis."