President Donald Trump has selected Judge Brett Kavanaugh to fill the vacancy on the U.S. Supreme Court left by Justice Anthony Kennedy’s retirement. Unless something damaging emerges from his background, Judge Kavanaugh will be confirmed.
Judge Kavanaugh has highlighted the importance of his Catholic faith in his personal life. But he will likely indicate in his confirmation hearing that his faith convictions do not and should not have an impact on his judicial decision-making. He will stipulate that when deciding cases, it is his responsibility to say what the law is, not what it should be.
His nomination raises the question of whether there can be such a thing as a Catholic judge. Or is good judging merely a matter of technical skill, like fishing, where one’s religion has no role in the task?
Transcending today’s judicial politics
The Church (in the United States) does not support or oppose candidates for office, including judges. Catholics can, however, turn to Church tradition for guidance in arriving at their own conclusions about the merits of candidates. Here, as on many topics, St. Thomas Aquinas provides remarkable wisdom.
As a judge’s main responsibility is to apply the law to specific cases, the interpretive methods a judge uses to identify the applicable legal rule are paramount. According to St. Thomas, judges should judge according to the law as written, noting that the act of judging is nothing other than rendering a decision about what is just.
The written law is an attempt to codify acts that are just by their nature or by agreement among persons. Quoting St. Augustine, St. Thomas highlights that once a legislator establishes the law, “judges may judge no longer of them, but according to them.” In other words, ignoring the written law usurps the legislator’s role in determining what is just when the written laws are created.
But, St. Thomas continues, “[j]ust as the written law does not give force to natural right, so neither can it diminish or annul its force, because neither can man’s will change nature.” Therefore, “if the written law contains anything contrary to the natural right, it is unjust and has no binding force.”
In cases of unjust laws, or those laws that when observed perpetrate an injustice contrary to nature in their effects, St. Thomas says that “judgment should be delivered, not according to the letter of the law, but according to the equity which the lawgiver has in view.” Here, St. Thomas transcends all the contemporary legal debates about, for example, “originalism,” “textualism,” “legal realism” and the “living Constitution.”
Depending on their judicial office, judges are not necessarily mere legal technicians — umpires calling balls and strikes, as in Chief Justice John Roberts’ famous analogy. Judges can also be agents of equity. To do justice means that a judge must, on occasion, correct inequity, whether it is perpetrated directly by a statute, or in its effects.
To do so effectively, however, means the judge must have the character, knowledge, and wisdom to be an agent of justice and equity. The judge’s equitable power is not an invitation to lawlessness.
Kavanaugh, Catholic judge?
So where does that leave Judge Kavanaugh? Is he a Catholic judge, or a judge who happens to be Catholic?
Liberal senators and activists committed to preserving the abortion license, and intuitively grasping that judges, inevitably, impose normative values on legal rules, will grill Judge Kavanaugh about his Catholicism, because they fear it will threaten cherished legal victories related to, among other things, abortion and same-sex marriage.
Conservatives will howl that this is an impermissible religious test for public office. But a judge’s religion, personal convictions and background are relevant if a judge is required to authoritatively render judgments to achieve justice. Supreme Court nominees are wise to skillfully sidestep them, but the questions, rightly directed, are not out of bounds.
These questions should not, however, descend into bigotry, and politicians who overstep the bounds of civility or respect should be held accountable.
Judge Kavanaugh, like the other Catholics who have served on the Supreme Court, will have to forge his own jurisprudence and reconcile his faith commitments and role as a judge. A Catholic judge serves with virtue and does not perpetrate injustice in rendering decisions. But there is no specifically “Catholic” theory of legal interpretation, and no prescribed Catholic handbook for being a judge.
Still, Judge Kavanaugh and other Catholic jurists may consider rediscovering the wisdom of St. Thomas to transcend yet another false “either/or” dichotomy in contemporary politics.
Adkins is executive director of the Minnesota Catholic Conference.
Pray to end abortion
Join Catholics across the United States for nine weeks of prayer, fasting and education. The novena began Aug. 3 and continues to Sept. 28. This “Call to Prayer” initiative of the U.S. Conference of Catholic Bishops leads up to the start of the next Supreme Court session (the first Monday in October). The focus is on prayer and fasting for an end to abortion while educating the public about how the Roe v. Wade decision is not health care, is bad law and fails women.
Visit usccb.org/pray to receive a weekly email or text reminder to pray and fast, along with a fact about Roe to share with others including your two U.S. senators.