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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
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 [Editors 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given just before the news that Harriet Miers had withdrawn her nomination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 nominees 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
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
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
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 shouldnt ask: Is the person a Catholic? They shouldnt
ask: Will the judge be good for the Catholic Church? The question
is not Catholicism as such; its 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 its 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, theyve 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 didnt 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 thats
all Catholics should ask.
We dont 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 Constitutionunderstood
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 takewhich 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 preferenceswhatever 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 questioningby
some Catholics in the Senate.
George: This is all about Roe v. Wade and related social issue cases.
The Democrats, the liberals, arent worried about people being Catholics.
Theyre worried about them being good Catholics. If theyre good
Catholics, theyll be pro-life and if theyre pro-life theyre
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 youre Sen. Teddy Kennedy or Sen. Dick Durbin youre worried
about a Catholic not because hes a Catholic but because he might be
a good Catholic, and if hes a good Catholic hes not going to
go along with Roe v. Wade. Thats what it comes down to. Not because
he intends to read his own Catholic views about abortion into the Constitution
but that hes more likely to notice that the Supreme Court simply made
up the right to abortion and its not in the Constitution in the first
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?
George: 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 shouldnt simply ignore the court. The court decisions, Lincoln
said, are worth a high consideration. And thats certainly true. But
theres 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
IgnatiusInsight.com: Can you give me some examples?
George: Sure, Lincolns 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 Illinoisnot 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 courts 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 courts 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 courts order.
IgnatiusInsight.com: How do you think that applies to present situations,
for instance Roe v. Wade?
George: 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. Wadethe sweeping ruling denying
all rights to the unborn against being killed by abortionneed not
treat that ruling as binding.
IgnatiusInsight.com: How would that be put into effect?
George: 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 thats 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?
George: Im 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?
George: There are a large number of people. There are a large number
of highly qualified, indeed distinguished people. Ill 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. Theres 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 contraceptioncan you explain that?
George: The whole things 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 anybodys 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, theyve got
to have abortion too in case contraception fails. So they struck down the
abortion laws. All of this without any Constitutional warrant. Theres
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?
George: In the case of Griswold, the answers 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. Theres nothing discriminatory about
it. Theres 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 theres an argument
that can be made for that.
But theres another argument that can be madenot for what the
court did in Roe v. Wade which is simply unsupportable, plainly theres
nothing in the Constitution forbidding states from enacting laws prohibiting
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 thats 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 its 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 thats 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 unbornto
at least some considerable extentwould be in violation of the 14th
Now, theres 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. Theres 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
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?
George: You would need four votes to get it before the court and I,
at the moment, cant 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 treatedsimply as a matter for legislative judgement, to
be resolved by the normal processes of deliberative democracy in the states.
I dont know what Justice Roberts view is. He, of course, didnt
tell us. I suspect, just guessing, thats it closer to the Scalia-Thomas
view than it would be to the view that says that weve got an equal
protection issue here.
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