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What To Look for in Nominees to the U.S. Supreme Court? An Interview with Constitutional Scholar Robert George | October 31, 2005

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Princeton University constitutional scholar Robert George believes that Catholics should not be parochially interested in getting Catholics or even pro-life justices on the U.S. Supreme Court. Rather, he says in recent this interview with IgnatiusInsight.com [Editor’s note: This interview was given just before the news that Harriet Miers had withdrawn her nomination for the Supreme Court], the critical litmus test is the nominee’s judicial philosophy, one based on the intents of the founders and framers of the U.S. Constitution. But as Insight explores in this interview, George also believes the Supreme Court may not always be the ultimate authority on how the U.S. Constitution should be interpreted.

George is the McCormick Professor of Jurisprudence and the director of the James Madison Program in American Ideals and Institutions at Princeton University. The James Madison Program is dedicated to exploring enduring questions of American constitutional law and Western political thought as well as to examining the application of basic legal and ethical principles to contemporary problems

A member of the President's Council on Bioethics, George served as a presidential appointee to the United States Commission on Civil Rights and was Judicial Fellow at the Supreme Court of the United States. He is the author of In Defense of Natural Law, Making Men Moral: Civil Liberties and Public Morality, and The Clash of Orthodoxies: Law, Religion and Morality in Crisis.

IgnatiusInsight.com: What should a Catholic look for in a nominee to the U.S. Supreme Court?

Robert George:
How should Catholics think about the issue of judges? They shouldn’t ask: ‘Is the person a Catholic?’ They shouldn’t ask: ‘Will the judge be good for the Catholic Church?’ The question is not Catholicism as such; it’s the common good. And our support for a judge or not should be on the basis of whether we believe the judge in question, whether it’s a lower court judge or a Supreme Court justice, will fulfill that particular role in advancing the common good that judges are given in our Constitutional scheme.

Now to do that, they’ve got to abide by the principle of the rule of law. That means they are to be guided not by their own judgements of policy but by what the Constitution and laws, that they didn’t write, require them to do. We need judges who will stick by the rule of law. We need judges who will enforce the Constitution, who will give effect to the text, logic, structure and original understanding of the Constitution. And that’s all Catholics should ask.

We don’t need to ask: ‘Is the judge pro-life or not?’ You could have a guy who is not pro-life but who would enforce the Constitution–understood as the text, logic, structure and original understanding. And who would, therefore, even though he might favor abortion personally, oppose Roe v. Wade and even possibly vote to reverse it. So that should be the question. The question should be, do you have a judge here who understands the role of the judge, who believes in the rule of law, who understands the limits of judicial power and therefore the limits of his own authority as a judge?

Those are the questions we should be asking. The same questions that Protestants should be asking, that Jews should be asking, that unbelievers should be asking. There is no distinctive Catholic take on these things. Well, maybe we should say that the Catholic take on these things is essentially in line with the Constitutionalist take–which is that the role of the judge is to enforce the terms of the Constitution and not to substitute for the Constitution, or judgements of the elected representatives of the people, his own policy preferences–whatever they might happen to be.

IgnatiusInsight.com: There are a number of Catholics on the Supreme Court right now (Clarence Thomas, Anthony Scalia, Anthony Kennedy, John Roberts) but there seems to be a sort of anti-Catholic bias in the questioning–by some Catholics in the Senate.

This is all about Roe v. Wade and related social issue cases. The Democrats, the liberals, aren’t worried about people being Catholics. They’re worried about them being good Catholics. If they’re good Catholics, they’ll be pro-life and if they’re pro-life they’re probably pretty inclined to see the Constitution pretty clearly and to notice that there is not a right to abortion in there and the Supreme Court has simply manufactured one.

So, if you’re Sen. Teddy Kennedy or Sen. Dick Durbin you’re worried about a Catholic not because he’s a Catholic but because he might be a good Catholic, and if he’s a good Catholic he’s not going to go along with Roe v. Wade. That’s what it comes down to. Not because he intends to read his own Catholic views about abortion into the Constitution but that he’s more likely to notice that the Supreme Court simply made up the right to abortion and it’s not in the Constitution in the first place.

IgnatiusInsight.com: Your view of how the Supreme Court should operate is that it is just one of three branches and that there are times when the executive can just ignore the Supreme Court. Is that right?

Ignore might be too strong a term. As Abraham Lincoln said, even where the executive does not consider itself to be bound by the court it shouldn’t simply ignore the court. The court decisions, Lincoln said, are worth a high consideration. And that’s certainly true. But there’s a difference between high consideration and being in effect ruled by the judges.

And there are circumstances in which presidents should not allow themselves to be ruled by the judges because their own oath to uphold the Constitution forbids that.

IgnatiusInsight.com: Can you give me some examples?

Sure, Lincoln’s example was the Dred Scott decision. The Dred Scott decision not only sent poor Dred Scott back into slavery although he had asserted his right to be free by virtue of having been taken into the free territory of Illinois–not only do it do that, it also declared that blacks, even free blacks could not be citizens and had no rights that white people needed to respect. Well, Lincoln was willing to accept the ruling in the particular case and said, that with respect to the parties of the case, Dred Scott himself, he would have, had he been president at the time, have carried out the court’s order. But he would not treat the order as binding on the executive branch in other cases, or in other respects, anything beyond that particular set of party litigants.

When he became president, the Dred Scott principle was still in place and he did not treat it as a binding rule. For example, he treated free blacks as citizens for the purposes of issuing passports and issuing patents to black inventors and so forth and so on. He also enacted and signed into law legislation that defied the court’s ruling in Dared Scott that Congress lacked the power to forbid slavery in the federal territories. In all of these ways, Lincoln did not accept and refused to be bound by the court’s order.

IgnatiusInsight.com: How do you think that applies to present situations, for instance Roe v. Wade?

As a matter of prudence there are questions about how far the executive branch should go. But it seems to me that a pro-life president need not treat the rule in Roe v. Wade–the sweeping ruling denying all rights to the unborn against being killed by abortion–need not treat that ruling as binding.

IgnatiusInsight.com: How would that be put into effect?

The president could support and sign into law legislation that ran directly into the face of Roe v. Wade and for example, enforced the conforce of the law. For example, in the area of partial birth abortion, bringing prosecutions against abortionists who carry out partial birth abortions against the legislation that’s enacted, even if the Supreme Court declares the legislation to be unconstitutional.

We would then be in a situation of a kind of constitutional crisis in the sense of a conflict between the two branches of government. But I think this president would be within his own authority in doing that. And I suspect the president in the political battle would win.

IgnatiusInsight.com: Is there anyone on the Supreme Court that shares that view, at this point?

I’m not sure. No one has fully articulated it.

IgnatiusInsight.com: Do you have a list of people you think would be good for the Supreme Court?

There are a large number of people. There are a large number of highly qualified, indeed distinguished people. I’ll just mention a few names in no particular order: Judge Michael McConnell of the 10th Circuit Court of Appeals in Utah, Judge Edith Brown Clement, judge of the Fifth Circuit Court of Appeals in New Orleans, her colleague on the Fifth Circuit, Edith Jones, Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit, Appeals Court judges, Alice Batchelder, Janice Rogers Brown, Samuel Alito. The list goes on and on. There’s no shortage of outstanding people who would be real ornaments to the Supreme Court.

IgnatiusInsight.com: The Roe v. Wade decision is based on the right to privacy articulated in the 1965 Griswold v. Connecticut ruling that outlawed laws against artificial contraception–can you explain that?

The whole thing’s flimsy. The whole thing was made up from the beginning. The so-called right to marital privacy, which was the euphemism that the court used in 1965 in handing down the Griswold decision, was not about anybody’s privacy, it was not about whether police could get in the house or anything like that — it was about contraception.

Then the court moved from legalizing contraception for married people to legalizing it in Eisenstadt v. Baird in 1972 for unmarried people and then a year later decided, well, contraception is not enough, they’ve got to have abortion too in case contraception fails. So they struck down the abortion laws. All of this without any Constitutional warrant. There’s nothing in the Constitution about any of this stuff.

IgnatiusInsight.com: In a perfect world, what would a good interpretation of the Constitution be on the Griswold case?

In the case of Griswold, the answer’s very clear. And that is that the court would consider it a matter properly within the jurisdiction of state legislators to decide. It would not be up to the federal judiciary to interfere in the matter at all. There’s nothing discriminatory about it. There’s nothing in the Constitution about it. States would be free, according to the best judgement of the state legislators representing the people, either to forbid contraception or to not forbid it.

When it comes to abortion, things get a little more interesting. Justice Scalia on abortion says the proper constitutional ruling would be exactly what I just said it would be for contraception. And there’s an argument that can be made for that.

But there’s another argument that can be made–not for what the court did in Roe v. Wade which is simply unsupportable, plainly there’s nothing in the Constitution forbidding states from enacting laws prohibiting abortion.

But there is a question whether the Constitution could properly or should properly be interpreted as restricting the authority of the states to permit abortion. And that’s because the 14th Amendment to the Constitution includes an equal protection provision, which forbids any state from denying to persons the equal protection of the law. Now by persons it’s possible that the framers and ratifiers of the 14th Amendment meant all whole living members of the species homo sapiens, all human beings.

But if that’s true, then the unborn, as human beings, whole living members of the species homo sapiens, would be protected under that constitutional provision, under the equal protection clause of the 14th Amendment. And that would mean that states that failed to protect the unborn–to at least some considerable extent–would be in violation of the 14th Amendment.

Now, there’s an additional question about whether it would be a proper role of the courts to step into and force states to do that. But, certainly, Congress would be within its authority in acting to protect the unborn if states fail in that respect. There’s a complicated question about what to do about abortion but the question is not whether courts should legalize it. The question is whether the 14th Amendment actually forbids the permissive regime of law that you have under Roe v. Wade, and that you had even prior to Roe v. Wade, in states like New York and Colorado and California that had liberalized their laws even before the judiciary had intervened.

IgnatiusInsight.com: Is it possible that if someone brought a case with the 14th Amendment equal protection clause as an argument, in a Roberts Court for instance, that the Court would accept the case for hearing?

You would need four votes to get it before the court and I, at the moment, can’t count one. Justice Scalia and Justice Thomas have taken the position that the Constitution is silent on the question of abortion, says nothing about it and it should be treated the way I said contraceptives should be treated–simply as a matter for legislative judgement, to be resolved by the normal processes of deliberative democracy in the states.

I don’t know what Justice Roberts’ view is. He, of course, didn’t tell us. I suspect, just guessing, that’s it closer to the Scalia-Thomas view than it would be to the view that says that we’ve got an equal protection issue here.

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