A Lot of Good It Does Us

OK, so he’s Catholic. Do we care? Does it matter? At first glance it may seem rather promising, but as I’ve mentioned in several installments this week, calling oneself a Catholic and actually acting like one don’t always go hand in hand. This is particularly true of folks who have to pass through Senate confirmation processes. The reason, of course, is that as soon as they find out you’re Catholic they do everything they can get away with to make sure you don’t actually vote your conscience (assuming that you actually have a properly formed conscience to begin with), so anyone who makes it to SCOTUS while claiming to be a Catholic is probably someone who is willing to say and do what it takes to get through the gauntlet. Such folks are not all that likely to be pleasant surprises on the bench.

This is not how it should be, of course. It’s pretty lame to pretend that there are no litmus tests, because literally everything is by definition a litmus test. You want someone who will uphold Roe? That’s a litmus test. You want someone who will overturn Roe? That’s a litmus test. You want someone who will not legislate from the bench? That’s a litmus test. You want someone who is immune to litmus tests? That’s a litmus test. In short, whatever necessary and sufficient conditions one puts on candidates for SCOTUS become, ipso facto, the litmus test. There is no principled reason why a Catholic who promises to vote his properly-formed conscience should not sit on the Supreme Court—it is a fiction to pretend that the folks who make it there are somehow value-neutral with respect to issues touching on matters of life and death and the rest.

What we want, of course, is someone who applies constitutional principles in a non-constructivist way. That’s our litmus test. But such a person could still believe that abortion is the unjust taking of innocent human life. Such a person ought to be able to say so to a confirmation hearing. And since there are no constitutional grounds for regarding any particular court decision as in principle non-reversible, such a person ought to be able to subscribe to the view that Roe is eminently overturnable. But of course nobody in his right mind would say that, if what he really wanted was to serve on the Supreme Court.

Given that he has not been involved in cases involving Roe, he will be able to say, as he must to win confirmation, that he cannot speak to any such cases in the abstract, that he will do his best, if confronted with such a case, to apply constitutional principles strictly construed, without letting personal bias or conviction sway him. Perhaps that will be enough to win confirmation. Who knows what else it will be enough for.