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Issues for Catholic Voters (2012 edition) – Judiciary

Judiciary (Chapter XI)

“Some there must be who devote themselves to the work of the commonwealth, who make the laws or administer justice, or whose advice and authority govern the nation in times of peace, and defend it in war. Such men clearly occupy the foremost place in the State, and should be held in highest estimation, for their work concerns most nearly and effectively the general interests of the community” (Rerum Novarum, 34).

In recent years, prolonged political battles have been waged over presidential nominations to federal courts of appeals. When President Bush nominated Samuel Alito and John Roberts to the Supreme Court, there was an aggressive effort against these nominations from pro-abortion lobbies on the grounds they appeared to be pro-life. On the other hand, pro-life leaders opposed the nomination of Elena Kagan and Sonia Sotomayor by President Obama because of their pro-abortion views.

The kind of nominees the President will likely make to both the Supreme and Federal Courts is an important factor in how Catholics should decide to cast their vote.  Because of debates over abortion and same-sex marriage, presidential nominees will be closely questioned during the campaign on their judicial philosophy.

Since these are the current flashpoints in the battle over judicial nominations, it’s not surprising that the religious commitments of court nominees have been so closely scrutinized in recent years. Given that Evangelicals and faithful Catholics are united in defending unborn life and marriage between a man and woman, the judges from those faith traditions have been attacked on the grounds that their faith commitments disqualify them as arbiters over constitutional matters.

Role of Judges

The U.S. Constitution is the cornerstone of our law and jurisprudence.  The role of a judge is to interpret, not create. The separation of powers in the U.S. Constitution gives the Congress the power to make laws and courts only the limited power to interpret them. Judges are expected to put their personal beliefs aside and base their decisions on the law and the Constitution alone.

Everyone has personal beliefs, matters about which they have deep convictions, and there is no reason that a Catholic or an Evangelical should be considered less able to interpret legal matters less objectively than anyone else.

It’s especially unfortunate when it is Catholic politicians themselves who lead the fight against those justices who have demonstrated strong commitments to Catholic teaching. Public officials who treat a judicial nominee’s Catholic faith as an obstacle to serving as a judge not only demonstrate a bias against religious beliefs but also reveal a misunderstanding about Catholic teaching on judicial responsibility itself.

In fact, faithful Catholics, who are grounded in the concepts of following rules and exhibiting humility, should be especially well-suited for judicial service because they would naturally reject the qualities that lead a judge to being an activist judge, a creator of law rather than an interpreter.

The most serious problem in the judiciary is the presence of activist judges who use every opportunity to misconstrue, contort, and stretch the law to create the maximum amount of legal justification for abortion, euthanasia, and same-sex marriage. Those who nominate and confirm judicial activists try to shape the courts because they cannot get what they want in the political process. Activist judges can disenfranchise voters of faith.

Natural Law

Catholics both within government and without must be on guard against an attitude that holds law to be whatever the legislator says it is. This reduction of law can endanger democracy and morality by removing the objective foundation of morals and law as given by nature and recognized by reason.

Eternal laws are the government of all things by God and form the basis of the social moral order. Their assimilation to human society through reason gives the immediate basis of political morality; natural law is the foundation of a sound political vision. Human laws that contradict the natural law—for example, American laws legalizing abortion—have no authority for Catholics. Martin Luther King quoted St. Thomas Aquinas on this point in his influential “Letter from a Birmingham Jail.”

What does this mean in our system of democratic government? First, our elected officials must make laws that respect natural law. Second, individuals who use the judiciary to create rights or obligations that have no basis in our Constitution are acting improperly.

Our founding document, the Declaration of Independence, was clear on this point:

“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

Some would have us believe that reference to natural law is a veiled attempt simply to establish a new “conservative” brand of judicial activism. These pundits, though, disregard the Founders’ view of natural law as seen in the Declaration as well as the natural law’s emphasis on the necessity for officials (including judges) to act only within the bounds of their legitimate authority.


1.      Judges should be evaluated according to their judicial records and commitment to the limited judicial role, not attacked for their privately held religious views.

2.     Those who would nominate and confirm judicial activists disenfranchise the faithful Catholic voter.

3.     Catholic leaders have a duty to respect their constituents and their Church’s traditional commitment to natural law tradition when considering judicial appointees.

By Deal Hudson, President of Catholic Advocate

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