Why Judge Kavanaugh’s Religion Should Be an Issue

by Adam J. MacLeod, Jul 17, 2018

Though our political institutions are designed to be secular and non-sectarian, our laws rest on Christian ideas about what we owe each other as human beings made in the image and likeness of God.

With President Trump’s nomination of Brett Kavanaugh to the US Supreme Court, observers of the federal judiciary are suddenly interested in the Roman Catholic faith. Many news reporters and opinion columnists breathlessly express anxiety about the religious commitments of federal judicial nominees, especially Christians who attend mass. A story about Brett Kavanaugh worries that he “could be instrumental in pitching the ideological makeup of the court to the right and leaving a conservative imprint on the law for a generation.”

A recent story about Leonard Leo, who advises the President on judicial nominees and is connected to the ascent of judges such as Kavanaugh, was even more hysterical. The author worried about a “secretive network of extremely conservative Catholic activists” who are stacking the federal courts with conservative jurists. Leo’s membership in the Knights of Malta, his public work in defense of religious freedom around the world, and his connection to Catholic-educated nominees such as Kavanaugh and Neil Gorsuch, all caused the author to fret that Leo is “shaping the federal judiciary according to his beliefs, with very clear ideological consequences.” The article asserts that the conviction that human life begins at conception is a religious belief. And it laughably attributes to Catholics the view that natural law “trumps any secular law that humans (or legislatures) might dream up.” Evidently, anti-Catholic hysteria trumps any research that journalists might dream up.

Other journalists have shown more knowledge and better judgment. They observe that Christian education forms character and makes men and women like Kavanaugh service-oriented and attuned to the needs of the poor. And they seem aware that Roman Catholics can read and apply the law.

Some Senators have injected nominees’ religious commitments into confirmation hearings. Senator Durbin made religion an issue during confirmation proceedings for another Roman Catholic judge, Amy Barrett. Senator Feinstein infamously raised the bar, telling then-Professor Barrett that the “dogma lives loudly within” her.

All this raises the question whether Judge Kavanaugh’s religion should be an issue during his confirmation proceedings. It should. But not for the reasons that seem to interest Senators Durbin and Feinstein and reporters inside the Beltway.

Christianity and the Rule of Law

The American tradition of constitutionalism abhors inquiries into the particular creeds espoused by candidates and nominees for public office. The Constitution of the United States prohibits religious tests. And anyway, religion is not the issue. Fidelity to the rule of law is what matters. Anyone can determine to follow the law, even Senators Feinstein and Durbin.

There is no reason to think that someone who accepts on faith the teachings of the Bible or the Roman Catholic Church is any less capable of correctly interpreting and applying the law than someone who accepts on faith what scientists tell us about global warming. Faith in something must precede reason—at the very least, faith in reason itself—else we could never know anything.

Indeed, we all have dogmas living inside of us. Sometimes those dogmas conflict with the law. But they need not always, and the law itself is a moral reason. The job of the judge is to interpret and apply the law, whether the judge is a Christian or something else.

So, in terms of competence and fidelity to law, it is neither here nor there that a nominee to the Supreme Court of the United States is a Christian. But it is also important that the nominee understand the law. In this respect, Christians have an advantage. For Christianity shaped the conceptual and historical foundations of the rule of law, and Christians have carried it forward for centuries.

It is true that primordial elements of the rule of law precede Christian society. Hammurabi’s Code, the Ten Commandments, and the philosophy of Plato, Aristotle, and Cicero all supplied essential elements from which Christian societies crafted the rule of law. But it was Christians who did much of the crafting, both conceptually and historically.

Conceptually, to have the rule of law, a society must understand its officials and members to be obligated by rights and duties. The law must rule, not the desires and whims of individuals or classes. People must honor their duties toward others. We must do to others what is right according to law. Judicial officials must sanction and remedy wrongs when people infringe others’ rights. Also, law cannot simply be whatever the person says it is who has the most power. Law must be knowable to reason and binding on the weak and powerful alike.

Where the law rules rather than the powerful, law is accessible to reason, and the edicts and judgments of officials can be justified and critiqued on rational grounds. Those grounds were cleared by pagan philosophers. Plato’s philosophical precision, Aristotle’s distinction between natural justice and legal justice, and Cicero’s identification of right reason as natural law all made it possible to critique law on grounds of reason accessible to all. But Christians laid the foundation and built the edifice.


Adam J. MacLeod is a professor of law at Faulkner University’s Thomas Goode Jones School of Law, author of  Property and Practical Reason,  and co-editor with  Robert McFarland  of  Foundations of Law.

Copyright © 2018 The Witherspoon Institute, all rights reserved.


Full article at: http://www.thepublicdiscourse.com/2018/07/22211/