MISREADING PRYOR, AND ME

The Curmudgeonly Clerk responds to my comments on Pryor, here. The Clerk thinks I am unfair to Scalia, unfair to Pryor, and overly generous to Democrats. The post is really good: go read it!

The Clerk gives a helpful quote from Scalia that helps to clarify the comments I heard him make at Georgetown last year, where he said that if he thought that Catholic teaching forbade the death penalty then he would resign from the bench. The quote from Scalia puts this idea in the context of his understanding of the limited nature of the judicial role. But it is worth noting that Scalia didn't say that if he thought Catholic teaching forbade the death penalty then he would subordinate his moral beliefs to his judicial role; he said that he would resign. If I have understood him, Scalia is claiming something about the relative priorities of various roles for the devout Catholic who holds a certain view that he or she believes is in line with catholic orthodoxy.

Now perhaps there is a big misunderstanding here, and what Scalia was really saying was that a devout catholic judge who believed that catholicism taught that the death penalty was contrary to God's law could reasonably and morally choose either path, namely, resignation or continuing on as a judge who shares some responsibility for the implementation of the death penalty. I'm not sure that that was Scalia's argument, but whatever he was saying, I think that we are justified in thinking that someone who has made the choice to be a judge in such a situation -- and someone who simultaneously professes to conceive of the judge's role in the way that Scalia does -- is choosing devotion to the judicial role over devotion to religious teaching. Unless you can find some way to reduce the moral conflict between the two, that is.

The choice for the judicial role (and against what is perceived to be the moral evil) is a choice that is bound to be psychologically burdensome, however, and it is one that a devout person might feel some regret over at some point in his or her career. And I think that we are justified in questioning the moral integrity of someone who is willing to subordinate (avowedly) deeply held religious beliefs to some concept of the judicial role for the purposes of maintaining this particular secular government. This world -- and its courts and judges -- will pass away, but you've got to live with God for eternity.

Now Pryor certainly did not say all of these things in his testimony before the Judiciary Committee, and I do not want to be unfair to him. The only question here is how he will act as a federal circuit judge with a lifetime appointment. Scalia sees the "living constitution" view as one way of reducing the moral conflict, and he sees the psychological and moral attraction of this view (in the quote that the Clerk provides). I suggested other possible reconciliations in my post below: you can take some kind of "natural law" view, or a realist, policy-attaining view, or a subversive view.

Another, more benign approach, would be to read precedent as narrowly as possible to prevent as much of the moral evil that you think you can get away with. (See Sam Heldman's post here.) That's probably what Pryor will do on the bench, and that's why Republicans want him there. He can claim that he's "following the law," to be sure, but for Republicans to agree with them, they will have to admit that there is some irreducible discretion in the judicial role and that they prefer judges who employ that discretion to attain policy goals that they agree with.

Note that I am not saying that the Democrats are acting according to principle and the Republicans are just playing politics, as the Clerk seems to imply. The question is how Pryor can hold to all of the views that he professes to hold. Democrats are right to be skeptical that he can and to look for something behind the words "follow the law." And let's not kid ourselves: everyone knows that he will be an anti-abortion judge, so there's really not a heck of a lot up for debate here anyway. He's not going to be Blackmun or Souter. He'll read the law so as to permit as few abortions as possible. There is no secret here. But if that's "following the law," then the supposed severity of the judicial role looks a little different than it did when Scalia was discussing it at Georgetown last year.

As a coda: most of this argument is subject to the qualification that the moral status of the death penalty is different from the moral status of abortion, at least with respect to the judicial role, as an astute reader has noted. I've got to think about that some more.