ANTI-CATHOLICISM?

William Pryor shouldn't serve on the federal bench. Below I noted Scalia's claim that Catholics against the death penalty shouldn't serve on the bench, and claimed that Pryor is in a similar position. I don't think that being Catholic has anything to do with it; the question is whether anti-abortionists of a certain type should serve on the bench, namely, those who believe that God prohibits abortions because they are murder.

Let me state my point more clearly.

If you believe that abortion is murder, that there is a God who will punish murderers, that U.S. law permits abortion, that U.S. law binds judges, that judges must permit abortion in order to "follow the law," and thus that judges are morally co-responsible for abortion, then you should not sit on the federal bench. If Pryor really wants to be a judge, one of those things has to give. It is entirely appropriate for Democrats to believe that one of them will give -- namely, that Pryor's professed ability to "follow the law" will prove to have been an overstatement. The interesting thing is that the Democratic position actually takes Pryor's religious commitments seriously: if Pryor really holds the beliefs on abortion that he says he holds, and if he is really a pious, anti-abortion Catholic, then he would have to be sophistic, hair-splitting, or lack integrity in order to serve on the federal bench.

None of this is to say you can't be an anti-abortionist judge. You just have to take a different view of the judicial responsibility to "follow the law," or a different view of what "following the law" means -- different from Pryor's apparent view -- in order to be one. You can choose a natural law approach (laws that are unjust according to natural law are either "not law" or don't deserve judicial allegiance), or you can take a realist approach (I like certain results and will read the law to allow them), or you can take a kind of subversive approach to the judicial function (I know that there is a tension here, but it's a tragic tension, and I'll go with my deeply held moral views). It would be hard to recognize any of these approaches as "following the law" in the way that the controversial Bush administration nominees have used the term, however. You can't attack realism on the one hand, for example, and then turn around and insist that judges can be realist when morals are at stake. That's having your cake and eating it, too.

I suppose Pryor could take a kind of Story-esque approach -- as in, Joseph Story -- and say that the judicial function requires judicial implementation of unjust laws. For Story the issue was slavery. People who take that position are rightly viewed as hypocrites, it seems to me, although I realize that it's a difficult issue; and Story has not been immune from the charge that he really wasn't against slavery . More damningly, Story at least had the excuse that he believed that anti-slavery rulings from the federal bench would precipitate secession and all of the material harms that such a move would create. However you assess that position morally, it's hard to have the same excuse with respect to abortion.

MORE: TAPPED has got parts of the transcript of Nina Totenberg's NPR story on the Judiciary Committee meeting yesterday. They're worth a look.