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f/k/a archives . . . real opinions & real haiku

August 1, 2005

storm lull

Filed under: pre-06-2006 — David Giacalone @ 7:08 pm

A sigh from her
then one from me—
two pages turn







storm lull
freshly crumpled paper
creaks twice






after the abortion
she weeds
the garden





stars fading –

she says I resemble

that aging actor





two squirrels play tree tag —

slow moving

Saturday night



[Aug. 1, 2005]  


Big helpings earlier today of Judges Roberts and Easterbrook.

(already, the July vacation is barely a memory)




What if John Roberts is a “Serious Catholic”?

Filed under: pre-06-2006 — David Giacalone @ 4:06 pm

Lawyers, judges, and law professors, need to be experts in relevance
and analogy to do their jobs well — including making relevant and cogent
analogies when there is no direct precedent(prior post)  That’s why I’m
puzzled that so many supporters of John Roberts’ nomination to the Supreme
Court insist there is absolutely no reason to believe that Roberts’ Catholic faith
and conscience may require him to vote in a prescribed manner on certain issues
that are considered clearcut and “non-negotiable” in Catholic moral teaching.
One very prominent example is the WSJ Opinion Journal piece last week
(on its Taste page!) by Prof. Douglas W. Kmiec (“Roberts and Rome,” July
29, 2005), which was quoted favorably by Rick Garnett at Mirror of Justice,
and Mike Cernovich at Crime & Federalism. (Also see Garnett here and here.)
commandments Among prominent weblawgers, only the medicant and proudly
Catholic Steve Bainbridge seems willing to point out: “[I]t’s worth
remembering that Catholic judges are bound by both [judical ethics]
rules and the dictates of their faith. The latter bars formal cooperation
with evil . . .”   Prof. B. also reminds those who say that Roberts would
“follow the rule of law” — including stare decisis — rather than Catholic
teachings on issues such as abortion and gay marriage: “stare
decisis is given far less weight with respect to Constitutional issues
than with respect to statutory or common law decisions.”
In his WSJ op/ed, Prof. Kmiec notes: “Yes, the late Pope John Paul II admonished
Catholic public officials to work legislatively to limit abortion — something that even
most Democrats proclaim to be doing at least during general elections.”  He then
comes to the crux of his analysis:
“But there is not one iota of church teaching demanding that a judge or
justice exceed the scope of his office to undo, on solely religious grounds,
the public law of abortion or any other matter.”
mjudge Drawing analogies to responsibilities laid upon citizens and legislators, I
believe there may indeed be such Church teaching — especially since a Supreme
Court justice would not “exceed the scope of his office” if he or she decides to
undo (or reverse sub silentio through severe limits) constitutional interpretations
that are considered by the Church to promote undeniable evil. The Church’s side
on matters falling into its “non-negotiable evil” category often involves positions that
are in fact espoused by many respected legal minds and could colorably be argued
by any talented justice (or law clerk).  This makes a responsibility to decide on the
basis of Church teachings even more likely to exist.
To pursue this issue, I think we should be asking John Roberts if he considers
himself a “Serious Catholic.”   More specifically, does he subscribe to the principles
laid out in the The Voter’s Guide for Serious Catholics (also here) that was widely read and followed
by the most devout of the Faithful during the 2004 Election. (prior post)  If he
does, we need to ask Judge Roberts whether he believes those principles and
requirements to be applicable to the actions of a Justice of the United States
Supreme Court.  If he won’t answer or answers in the negative, the rest of us
as lawyers and citizens — are surely allowed to draw our own analogies and
The Guide states that there are five current issues upon which the Church takes prayingHandsS
non-negotiable positions.  It then tells how to vote in an “informed manner consistent
with Catholic moral teaching.”  The five subjects are: Abortion, Euthanasia, Embryonic
Stem Cell Rearch, Human Cloning, and Gay Marriage (the death penalty is specifically
Below is a sample of excerpts from the summary or full text of the Voter’s Guide
for Serious Catholics, which I believe are relevant when thinking about Judge Roberts’
mindset as he contemplates his duties as a Catholic and a Supreme Court Justice.

Excerpts from: The Voter’s Guide for Serious Catholics (citations omitted; exphases added)

– This voter’s guide helps you cast your vote in an informed manner consistent

with Catholic moral teaching.

YOUR ROLE AS A CATHOLIC VOTER Catholics have a moral obligation to

promote the common good through the exercise of their voting privileges. It is not

just civil authorities who have responsibility for a country.

“Service of the common good require[s] citizens to fulfill their roles in

the life of the political community.”

This means citizens should participate in the political process at the ballot box.

But voting cannot be arbitrary. “A well-formed Christian conscience does not

permit one to vote for a political program or an individual law that contradicts

the fundamental contents of faith and morals”

A citizen’s vote most often means voting for a candidate who will be the one

directly voting on laws or programs. But being one step removed from law-

making doesn’t let citizens off the hook, since morality requires that we avoid

doing evil to the greatest extent possible, even indirectly.

handcuffsG Some things always are wrong, and no one may deliberately vote

in favor of them. Legislators, who have a direct vote, may not support these

evils in legislation or programs. Citizens support these evils indirectly if they

vote in favor of candidates who propose to advance them. Thus, to the greatest

extent possible, Catholics must avoid voting for any candidate who intends to

support programs or laws that are intrinsically evil. When all of the candidates

endorse morally harmful policies, citizens must vote in a way that will limit

the harm likely to be done.

FIVE NON-NEGOTIABLES These five current issues concern actions that

are intrinsically evil and must never be promoted by the law.  Intrinsically evil

actions are those that fundamentally conflict with the moral law and can never

be deliberately performed under any circumstances. It is a serious sin to

deliberately endorse or promote any of these actions, and no candidate

who really wants to advance the common good will support any action contrary

to the non-negotiable principles involved in these issues.

ABORTION: The Church teaches that, regarding a law permitting abortions,

it is “never licit to obey it, or to take part in a propaganda campaign in favor

of such a law, or to vote for it” (EV 73).  . . . The unborn child is always an

innocent party, and no law may permit the taking of his life.

As Pope John Paul II indicated regarding a situation where it is not possible

to overturn or completely defeat a law allowing abortion, “an elected official,

whose absolute personal opposition to procured abortion was well known,

could licitly support proposalsaimed at limiting the harm done by such a law

and at lessening its negative consequences at the level of general opinion

and public morality” (EV, 73; also CPL 4). . . .Catholics must strive to put

in place candidates, laws, and political programs that are in full accord with

non-negotiable moral values.

– [RECUSAL] Not voting may sometimes be the only moral course of action,

but we must consider whether not voting actually promotes good and limits

evil in a specific instance. The role of citizens and elected officials is to promote

intrinsic moral values as much as possible today while continuing to work

toward better candidates, laws, and programs in the future.

–  HOMOSEXUAL “MARRIAGE.” When legislation in favor of the recognition

of homosexualunions is proposed for the first time in a legislative assembly,

the Catholic lawmaker has a moral duty to express his opposition clearly

and publicly and to vote against it. To vote in favor of a law so harmful to the

common good is gravely immoral.”


by the legislature, enforced by the executive branch, and interpreted by the

judiciary.  This means you should scrutinize any candidate for the legislature,

anyone running for an executive office, and anyone nominated for the bench.
commandmentsN I believe the above quotes give an accurate sense of the Guide‘s tone and
thrust. You are, of course, encouraged to draw you own conclusions, applying your
expertise in legal analysis, relevance and analogy.  My legal training and experience
lead me to conclude that:
tiny check The principles set forth in the Guide would be applied by any “serious Catholic”
serving as a judge, there being no important moral difference between a citizen
voting for a candidate (or a legislator voting for a law or program) and a judge
deciding an issue coming before him or her; indeed, the citizen is said to be
no less responsible than “civil authorities.”  Because the judge has so much
more direct power in a decision than any one voter or legislator, the judge would
seem to have an even greater obligation to follow the Church’s mandates;
tiny check Like a legislator, a lower court judge may be in a position where the “evil” law
cannot be undone, and the judge must then act so as to limit its impact to the
extent possible; the judge may use recusal if doing so does not in actuality help
to promote the evil rather than limit it;

  • So, Rob, Judge Roberts was not being disingenuous in his Circuit Court

    nomination hearing, when he stated that his personal views would not

    keep him from applying the Roe v. Wade precedent.
tiny check A Supreme Court justice who is a “serious Catholic” must, especially in the
constitutional realm (but also when interpreting statutes and executive actions),
vote in a manner that would prevent or undo any “non-negotiable evil,” or limit it to
the greatest extent possible; a recusal that would let such evil stand is not
permissible (cf. Beldar on recusal).
The principles and obligations set forth in the Voter’s Guide for Serious Catholic’s seem
highly relevant to a Catholic judge’s decision-making on the bench.  An analogous Judge’s
Guide for Serious Catholics would surely contain similar prescriptions and proscriptions —
probably with stronger ones for Supreme Court justices, given their power and relative
freedom of action.  Would a “serious Catholic” justice vote in opposition to the Church’s
position when dealing with a non-negotiable issue?   Would he or she risk performing a
“gravely immoral” act — a “serious sin” — if there were any colorable legal argument to
be made consistent with Church teaching?   I think advocates on both sides of the Roberts
nomination battle know the answer to that question.
update (Aug. 3, 2005): Prof. Bainbridge has written a lengthy reply to this post.
In response, see my On Bainbridge and Roberts’ Catholicism.  At Pro Ecclesia,
Jay Anderson said Prof. B’s approach seems reasonable; Eugene Volokh points
to it as thoughtful.”
approxS Analogies from Master Issa:

let him pass
like a mosquito, a fly…
solitary priest
like people
an upright scarecrow
can’t be found
like demons emerging
the autumn clouds
cursing like sailors
at the plum tree…
like marching ants
person after person…
an evening lark

–  from Kobayashi Issa,
translated by David G. Lanoue
handcuffs neg

Frank Easterbrook calls juries “twelve high school dropouts”

Filed under: pre-06-2006 — David Giacalone @ 1:46 am

Frank H. Easterbrook (famous for his surly-burly manner on the 7th Circuit and his

Art. III “Hottie Bear” status over at Under Their Robes), must have hibernated through

Law Day ceremonies last May.  The 2005 Law Day theme was “The American Jury:

We the People in Action.”   In our May 1st post we noted:

LawDayJury  The ABA’s Law Day theme page got it right about juries:

“The jury is the embodiment of democracy. We entrust juries—small

bodies of ordinary men and women—with decisions that involve the

liberties and property of defendants. In doing so, we confirm our faith

in the ability of people to make just and wise decisions, and that is the

very definition of democracy. We also see the jury system as an opportunity

to educate Americans in law, legal processes, and decision-making in a


Like the ABA (which is rarely praised at this website), we quoted from Alexis de Tocqueville

in his Democracy in America (free download from Project Gutenberg):

The jury, which is the most energetic means of making the people rule,

is also the most efficacious means of teaching it how to rule well… The jury …

may be regarded as a … public school, ever open, in which every juror learns

his rights.


EasterbrookMug  Frank Easterbrook apparently has quite a different view of juries.  On July 28,

the Antitrust Modernization Commission held hearings on Civil Remedies Issues.  Judge

Easterbrook was a witness on the issue of Contribution, and submitted his 1980 article

(with Landes and Posner) “Contribution Among Antitrust Defendants: A Legal & Economic

Analysis,” 23 Journal of Law & Economics 331, as his Statement to the Commission. 


Easterbrook continues to argue that those who want to change the No-Contribution rule have

not made their case, and that the current rule leads to better deterrence and stronger

antitrust enforcement.  A very reliable audience member tells me (as confirmed by another

witness) that Judge Easterbrook referred to juries during his testimony as “twelve high school dropouts.”   His point, I suppose, is that non-expert juries can make mistakes when applying

the antitrust laws or assigning levels of culpability to defendants, as would be required under a Contribution Rule. 


Twelve high school dropouts.”  Isn’t that charming?  It will be interesting to see whether the good

judge’s (frankly undiplomatic) phrase shows up in the official transcript of the hearing.  This post

is my effort to  make sure it’s on the public record.

tiny check Perhaps Judge E. should do a little remedial study on the American jury system. crayon box 

He could start with this page to color from the Michigan State Bar’s Law Day Contest.

As our post noted in May, the picture (with jury, lawyer, judge and witness) and the

included questions make a fun learning experience.  Next. Charm School.

tiny check  By coincidence, Texas lawyer Clay Conrad wrote an excellent piece yesterday

at jurygeek, where he asserted “We do not need better jurors: we need better lawyers,

better experts, and – perhaps – better judges.”  (via Mike Cernovich)




sumo  Master Issa saw a little pomposity in his day, too:


foolish cat–
yet he knows which futon
is his




vain man…
the autumn moon




he’s become a
sumo wrestler! the proud






short summer night–
foolish flowers, clever flowers




translated by David G. Lanoue


tiny check  Tangential aside:  Writing this post caused a pleasant little flashback for your Editor

— reminding me of one of my brightest episodes as an antitrust advocate at the FTC, 

twenty-one years ago.  Through an enormous quirk in the federal antitrust caste system,

I ended up drafting the legal analysis of the antitrust per se rule and rule of reason that

appeared in the Amicus Curiae brief of the United Staes in NCAA v. Bd. of Regents,

468 U.S. 85 (1984).  The brief opposed the position of the NCAA, which was repesented

at the Supreme Court by then-professor Frank H. Easterbrook.  The Court adopted the

groundbreaking reasoning of the U.S. [smile], finding that the Association’s attempt to act

as the sole agent selling television rights for in-season football games for all of its members

violated the rule of reason, without having to do a “fullblown” analysis of market power.  

For the first time this evening, I noticed that the caste system — SG over Antitrust Division 

over  FTC — did still exist when it came to the Court’s opinion.   Although the Commission’s

General Counsel and I were listed on the cover and inside the amicus brief, our FTC employment

status apparently warranted exclusion from the list of lawyers “on brief” with the Solicitor

General.     Like juries, lowly FTC lawyers sometimes get no respect from the judiciary. 


                                                                                  sumo neg

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