November 7, 2005

"So many of the brightest stars in the conservative legal firmament are Catholics."

WaPo's Alan Cooperman explains why, in recent years, so many Catholics have been chosen for the Supreme Court. (Samuel Alito will be the fifth Catholic on the Court.)
[USC Political Science professor Howard] Gillman believes that beginning in the 1960s, many conservative Catholics went into the legal profession "because they felt the constitutional jurisprudence of the country was not reflecting their values," particularly on abortion, funding for parochial schools and restrictions on religion in public places. "I think you're seeing the fruits of those efforts now," he said.

Bernard Dobranski, dean of Ave Maria School of Law, a Catholic institution founded in 2000 in Ann Arbor, Mich., said the number of highly qualified conservative Catholic lawyers is also a tribute to the strength of Catholic schools, the determination of immigrants to educate their children and a rich tradition of legal scholarship in the Catholic Church.

A hallmark of that tradition is the belief in "natural law," a basic set of moral principles that the church says is written in the hearts of all people and true for all societies. Though long out of favor in secular law schools, the natural law approach is resurgent among conservatives, Dobranski said.

Another reason for the prominence of Catholics in conservative legal circles is that many have graduated from Ivy League colleges and law schools. Attending those schools has practically been a prerequisite for the clerkships that launch high-flying legal careers.

Evangelical Protestants are also becoming more visible on Ivy League campuses and at top law schools. But, said Notre Dame's Bradley, "I do think that there is an important truth in saying that Catholics are the intellectual pillars of social conservatism. Compared to their political allies in that movement, Catholics are heirs to a richer intellectual tradition and . . . are more inclined to believe that reason supplies good grounds for the moral and political positions characteristic of social conservatism. Call it the 'natural law' thing."
Interesting. The article also notes that Justice William Brennan, the Court's last passionate liberal, was also Catholic. Liberals are missing something if they lose the sense that rights are real and substantial. As I listen to the attacks on Judge Alito, I hear, relentlessly expressed, the idea that law is political and judges are all ideologues who, given power, will work their will on us. Where are the passionate, Brennanesque liberals of yore, who really believed we have rights? Is that belief becoming solely a conservative notion ?

21 comments:

HaloJonesFan said...

Well, the Dem/Left position is that you don't need to believe in rights--you just have them. It's like believing in tables, or something--you just have the right to free speech, public order, a job, free housing, free medical care, free food, equality...unique names for cheese...um, not being allowed to keep dogs?

Anyway, it's just common sense that you have these rights. You don't need to claim that any Flying Spaghetti Monster gave them to you.

I do enjoy, though, seeing that most lists of "natural rights" line up pretty well with the Ten Commandments...but hey, we aren't citing religious sources, it's just common sense!

"Common Sense" is neither.

Goesh said...

- provocative thought, probably quite true

Ann Althouse said...

HaloJones: Funny, but I've still got to emphasize that the notion of constitutional rights as real as things like tables is dying out. It should be what liberals think. The left position sees rights as political constructs. I am dismayed that the leftist position is becoming the norm among mainstream liberals.

Dave said...

There certainly seems to be something to the idea that modern evangelicalism is anti-intellectual. I don't know enough about modern Catholicism to judge how intellectual its adherents are, but if I were to hazard a guess on the basis of Mel Gibson and his Dad, I would say not very. On the other hand, of course, there are Catholics like Scalia who are obviously intellectual.

HaloJonesFan said...

Ann: I mis-paraphrased Terry Pratchett. I meant to say that the liberal position is, believing in rights is like believing in tables--you don't need to believe in them, they're self-evident and objectively definable. They don't claim to cite any higher authority to define their rights. However try this: ask an atheist how morality beyond "eat-kill-hump-crap" is justified. Take his answer, and replace "common sense" with "God". You get the same justification that religious people use!

All moral systems are based on an appeal to an unknowable objective authority. At least in the religious case, there's an original text to return to when questions arise. You don't need to depend on the shifting sands of human thought. (Well, you do, but it's arguments over the interpretation of a source, not arguments over the fundamental nature of morality.)

Mike said...

Finding rights in the constitution is more difficult than making them up out of the thin air--basically, the way I view natural law. If you ask me, I tend to trust those that flatly say, "this is right (or wrong) because I know it is" rather than "this is right (or wrong) because of the following strained legal analysis...". The latter is usually a cover for the former.

Liberal jurisprudence is just not as easy to swallow, nor does it make for the same type of sound bite as, the conservative jurisprudence. I mean, it's easy to say "I'll follow the strict language of the Constitution" (even when we know that's hardly how it ever works). It's also difficult since the right has politicized the judiciary WAY before the left did by calling liberal judges activist judges, which is beyond ridiculous.

Frankly, I believe the next great liberal judge will be a legal realist and well-schooled in Law and Economics.

Too Many Jims said...

"I hear, relentlessly expressed, the idea that law is political and judges are all ideologues who, given power, will work their will on us."

Couldn't that clause be used to aptly describe many who call themselves "conservative"? If you look at what Delay, for one, said during the Schiavo fiasco or pretty much all of "Justice Sunday" isn't that their perspective?

"Natural law" sounds grat (and I personally believe in it) but while "natural law" is fixed, our understanding of it is not. (E.g. Slavery used to be justified under natural law.) Of course, to the extent any judge wants to use "natural law" in his decisionmaking process, there is the possible difficulty that what "natural law" requires may be in conflict with the constitution.

peter hoh said...

I've been saying since -- oh, perhaps the 2000 election -- that liberals need to embrace liberty or they are going to continue to get their asses kicked at the polls. In the ongoing public debate -- the one carried out on talk radio and over coffee, the language of liberty, especially individual liberty, has been usurped by the conservatives.

Ann Althouse said...

Jim: Yes, and I criticized those conservatives when they did that. Also, you can believe rights are permanent and still disagree with what other folks who thought rights were permanent thought those rights were.

Too Many Jims said...

"Taking Rights Seriously" how Dworkinian of you.

PatCA said...

I have always thought Catholics make the best lawyers. I was raised Catholic in the pre-liberal era. We didn't study the Bible much but instead memorized and analyzed all the various rules and regs for daily living memorialized in the catechism. We rigorously parsed the difference between mortal sins and venial sins (felonies and misdemeanors). How far could you go with your boyfriend before you hit mortal? If you ate a burger on Friday, confessed on Saturday, and died on Sunday, you would certainly go to heaven, according to the law.

It was a system of faith reduced to a very legalistic, reason-based scheme, and we were trained well. I wonder if the new generation of Catholics will change the pattern at all.

dick said...

I have always thought that the Catholics with their legalistic view of sins and the Jews with their discussions of the meaning of the Talmud were bot educated superbly for the legal profession. It seems as a non-lawyer that so much of the rulings of the law are based on being able to really parse the meaning of the law and so many people, obviously to read some of the comments here and on Volokh, are totally unable to do that. We are lucky to have Ann to lead us in this discussion.

Bruce Hayden said...

I think that patca has a very good point. One of the biggest things that I think that a lot of Protestants had with Catholicism was precisely that it was too legalistic. The idea that you could eat a burger on Friday, confess on Sat., and get to Heaven on Sun. is anathema (good Catholic term) to many Protestants who tend to believe in a totality of one's life being critical when it comes to Salvation. Think of it maybe as the difference between law and equity. Indeed, this, to some extent, was the debate that Martin Luther really got going - that the Catholic Church had gotten overly legal.

But don't forget the Jesuits here - the preeminent parsers of Catholic dogma, and educators of many of these Catholic lawyers.

The point on Jews is also valid. The problem of course is that the bulk of American Jews are still on the left - which is why the two Jewish Justices were appointed by Clinton. Indeed, we will probably soon find ourselves with a Court consisting of 5 Catholics, 2 Jews, and 2 Protestants, in a country that is still tokenly majority Protestant.

Bruce Hayden said...

Let me add that this distinction between totality of one's life versus obeying set rules for Salvation is one reason that I don't see Fundamental Protestants catching up to the Catholics here. Just a different mindset, one that isn't as much a natural fit for the bench.

StrangerInTheseParts said...

I think there are even more reasons why Catholics become good lawyers and judges. Catholic Thought evolves inside, and in service of, a huge institution. All inquiry and developement of the Canon of Catholic Law always has the overriding pressure of maintaining continuity with the Established Church. No matter how clever or radical your ideas are, if you're going to be Catholic, you've got to build your argument with respect to precedent and authority.

This is very similar to the pressure on judges and lawyers to argue their beliefs in a way that ultimately buttresses the authority of the State.

Protestants, particularly evangelicals, feel no such pressure to maintain any institution when they seek laws and rules for themselves. The Protestant mentality is far more adept at revolting against kings and founding new nations.

Elizabeth said...

I'm not ready to write off liberals as not believing in rights are actual things, and not just relative to culture and time. I love reading Sarah Vowell, for instance, because like me, she's committed to the promise of our founding, that we are endowed by our creator with inalienable rights. I don't think it's necessary to agree on what "creator" means to appreciate that as a human, my rights to life, liberty, and teh pursuit of property, whoops, happiness, are my birthright.

I'm not a lawyer, my only background on law is a single Constitutional law course in undergrad school (poli sci major), and so I speak from the position of naive citizen. But I'm pretty sure the founders were deliberate in omitting women from the constitution and Bill of Rights (see the exchange of letters between Jane Adams and her husband during the Philadelphia convention), and someone already covered the omission of blacks (slave or free). So to believe that the rights themselves are concrete, and that our understanding of how rights work changes, makes sense to me. I wouldn't want to live under the original understanding of those documents, and yet I hold them sacred for the expansive view of human liberty that they introduced.

The liberal legal tradition lives on in Catholocism, so far as I can tell from my local law school, Loyola University in New Orleans. The school is known for emphasizing social justice, particularly with concern to poverty. I have friends who graduated from there, and all are flaming liberals. It may be that conservative Catholics dominate high ranks in the judicial world, but liberalism is alive and well in the world via nuns, priests, lay people and educators.

Crank said...

Note that all five Catholics under discussion are Republican appointees.

I'd concur with some of the comments here. Specifically, the originalist interpretation of the Constitution is basically text + tradition - which is precisely how we Catholics read Scripture. The prominence of Catholics in the originalist movement is no accident.

somross said...

Interesting, Crank. But of course no Catholic has been elected president since Kennedy, and no Jewish person has been elected president at all; there is also a strong social justice element in the 20th and 21st century Catholic church, and some of us look back fondly on Vatican II. My family is full of Catholic lawyers and politicians and none of those considers himself or herself conservative.

PatCA said...

Good comments on Catholicism and Judaism...

BTW I'm not distinguishing liberal from conservative Catholic legal scholars here. I'm talking about Catholicism's unique approach to thinking about issues, not the issues themselves. And fundamental Protestantism is different--maybe a more emotive approach, or a personal relationship with God, not mediated by institutional law?

The post-Vatican II generation has not yet ripened into SCOTUS nominee material. And the Catholic social justice ethic seems more focused on a boots on the ground approach right now. It's too early to tell, but maybe some of the new generation will ultimately follow the judicial path.

PatCA said...

Somross,
Electoral politics differs from scholarly work, though. Kennedy was charismatic. I don't think his appeal had much to do with the way he thought and analyzed.

somross said...

It seems to me that being Catholic and a politician these days can be problematic - in a way that being Protestant is not: Catholic politicians' faith is scrutinized for its degree of adherence to the rules and whether or not that matches what the voter wants. (Although apparently no one worries about that birth control one anymore...thank goodness. I know I didn't.) And it looks as though Supreme Court candidates are scrutinized similarly - the big difference being the court candidates are appointed, even if they have to be approved.