Editorial: What Can Be Asked of a Judge

A number of important questions touching on religion and public life were raised early on in connection with the nomination of Judge Clarence Thomas to the Supreme Court. One set of questions has to do with his Catholic background, the other with some public statements he has made regarding the role of natural law in jurisprudence.

Columnist Ellen Goodman took alarm when, at the announcement of his nomination, Thomas expressed gratitude to the nuns who had taught him as a child. Virginia’s Governor Douglas Wilder immediately proposed that Thomas should be questioned as a Catholic: “The question is ‘How much allegiance is there to the pope?’” Goodman, predictably, comments: “It isn’t liberals and it certainly isn’t Douglas Wilder who have reopened the can of worms marked religion. It’s the Catholic hierarchy. American Catholics have often lived with tension between their national character—a feisty don’t-tell-me-what-to-think independence—and a religious hierarchy that struggles to contain a set of shared rules and beliefs.”

The offense of the bishops, according to Goodman, is that they persist in believing that Catholics should uphold Catholic morality and beliefs. She endorses John F. Kennedy’s response of 1960 to the Baptist preachers of Houston when he assured them, in effect, that he would not let his religion impinge upon his politics (or, as it turned out, much else in his life). Hers is but a repeat of the maxim embraced by so many secularists that the only good Catholic is a bad Catholic.

Of course the issue that agitates Ms. Goodman is abortion. She assumes that the abortion license is guaranteed by the Constitution, and it therefore follows that anybody who does not affirm that license is “obeying” some authority other than the Constitution. In this case, she suspects, Thomas would be obeying the “authoritarian” bishops. But, of course, whether or not unlimited access to abortion is guaranteed by the Constitution is precisely what the great legal debate is about. Ms. Goodman, like so many others, simply wants to prejudge the outcome of that debate with a diktat in favor of “abortion rights.”

A justice is sworn to uphold the Constitution. Judge Thomas’ duty would be to interpret the Constitution as accurately as he possibly can. Once a justice has made the moral decision that he can in good conscience swear to uphold the Constitution, his moral judgments on matters before the Court are not in play. At least that is one theory of how the Court should work. Many people, mainly liberals and certainly including Ms. Goodman, don’t accept that theory. They believe that justices should be and inevitably are construing the Constitution according to their own morality. Further, they insist that the only morality to be admitted in such decisions is the morality of the “feisty don’t-tell-me-what-to-think” variety—so long as justices think the way Ms. Goodman and her like think, especially on abortion.

The morality that must at all costs be excluded is any moral discernment shaped and sustained by communities of tradition. In other words, all traditions are excluded except the modern liberal tradition of the autonomous self, centered in individual rights. This patently self-serving argument imposes, in violation of Article VI of the Constitution, what is in effect a “religious test” that would keep off federal courts not only Catholics but Jews, Muslims, Baptists, and anyone else who adheres to a tradition of moral truth that is sustained by communities that are labeled “religious.”

The mindset that would impose the orthodoxy of secular individualism on everyone is also at work in the protest against Judge Thomas’ statements on “natural law.” The Declaration of Independence declares that “we hold these truths,” and these truths are explicitly grounded in the laws of “Nature and Nature’s God.” Despite many scholarly efforts aimed at demonstrating that the Founders did not believe what they insisted that they did believe, it is manifest beyond doubt that the signers and ratifiers of the Constitution subscribed to a Puritan-Lockean synthesis that emphatically included a strong concept of natural law. Their understanding is embodied in the Constitution.

No judge is free to rewrite the Constitution according to his or her concept of natural law or, for that matter. any other moral theory. But that a justice shares the Founders’ understanding of the moral grounding of the Constitution would seem to be a strong reassurance, rather than a reason for doubt, that be would faithfully uphold the Constitution that they produced. On the question of natural law, the accusation against Judge Thomas is that be resists those who would lay a moral foundation for the Constitution other than the foundation laid by those who wrote and ratified the Constitution.

Others may make whatever arguments they wish, but it should not be considered disqualifying that a nominee for the Supreme Court agrees with the Founders that our constitutional order is derived from and accountable to a higher law. In the Constitution, they gave political expression to their understanding of that higher law. Finally, the only question that should be put to a nominee for the Court is whether be understands and will be faithful to the Constitution that the Founders produced. All the rest is partisan smoke.