Busted: Fr. Gregory A. Kalscheur, SJ

A Constitutional Law professor discusses the nomination and confirmation hearings of

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Considering their limited number (nine), their lifetime appointments and the far-reaching effects of their decisions, the nomination and confirmation of a Supreme Court justice is an infrequent and important event. Of course, like many things in Washington, the process can also be extraordinarily confusing.

In this BustedHalo interview, Father Greg Kalscheur SJ, a Jesuit priest and assistant professor at Boston College Law School helps give our readers some perspective on John Roberts’ nomination and confirmation hearings. Father Kalscheur’s primary teaching and research interests include law and religion, constitutional law, civil procedure, Catholic social thought and the law, and the contributions of Ignatian spirituality to the character of legal education at a Jesuit law school.

Before entering the Jesuits, Fr. Kalscheur, 41, received his law degreee from the University of Michigan, where he served on the editorial board of the Michigan Law Review. After law school, he clerked for the U.S. Court of Appeals and worked as a litigator in Washington DC. Since entering the Jesuits, Fr. Kalscheur received his MDiv degree from Weston Theological Seminary as well as an LLM degree from Columbia University school of law.

BustedHalo: What do you find are some of the misconceptions about nominations to the Supreme Court and specifically regarding the recent hearings for John Roberts (pictured below)?

Fr. Greg Kalscheur, SJ: The most common misconception I think, and it’s wide spread, is what the role of the judges is. People have a tendency to want to know what the nominee’s policy preferences are with respect to different things. You saw that both in statements that the Bishops’ Conference made before the nomination was announced and you see it in some of the questions senators were asking during the confirmation hearings. There was one exchange with Senator Biden where he was trying to get Judge Roberts to comment on what he thought about physician assisted suicide, not so much as a legal matter but as a policy matter or personal matter. ‘What would you do if you were faced with a difficult end of life situation in your own family,’ which was not immediately relevant to how he would interpret the Constitution. I thought Roberts’ response was quite good. Biden said that senators who run for election could never get away with not telling people what they thought about these issues. Roberts’ response was “I’m not running for election.”

We don’t elect federal judges. Federal judges don’t campaign for office. To have an expectation that they tell you what their personal views are on particular policy matters is out of bounds in the sense of what we look for in judges. I think Senator Durbin was asking similar kinds of questions in terms of getting a sense of what [Roberts’] “heart” is and “how you feel about helping the poor” and things like that. Those are entirely relevant questions for people running for office but not immediately relevant for people in charge of interpreting the constitution.

BH: What would be relevant questions for a Supreme Court nominee?

GK: There were lots of questions about precedent that were all sort of veiled discussions about Roe v. Wade and what you do with [it]. [Roe v Wade was the controversial 1973 Supreme Court decision that legalized abortion. -ed] The important questions are how does he approach the interpretive process as a judge. What kind of judicial style does he have? What kind of interpretive approach does he have? He answered the questions on a fairly general level on those things. There were problems asking him to discuss particular precedents in the past–asking him how he would analyze the decisions made in Roe or Brown v Board of Education. He didn’t want to do that to a great extent. He talked about Brown v Board of Education or Griswold v Connecticut. Which are actually quite important.

I don’t think one’s faith determines the way in which one interprets the Constitution. Part of the problem is the expectation that if you have a particular stance with respect to the moral issue of abortion that you must interpret the Constitution with respect to that stance.

BH: What is Griswold?

GK: Griswold is a case that is sort of the initial right-of-privacy case, which struck down Connecticut’s attempt to prohibit married couples from using contraception.

BH: This is in the ‘60’s?

GK: It’s ’65 or ’66. That case becomes an important precedent leading up to Roe. There are ways in which you can draw lines between that case and Roe. You can say you accept Griswold but it’s misapplied in future cases. I think Roberts, in terms of political prudence, didn’t want to answer very many questions about past precedents. His rationale was that those discussions bring up issues that might come before the court and he doesn’t want it to seem that he was promising to do one thing or another with respect to this issue.

To not promise to rule a certain way is an appropriate line to draw. Discussing past cases does not necessarily imply to rule a certain way. Given the political nature of the process, I don’t know if it would be a politically prudent thing for him to do if he wants to be confirmed to answer those questions. You saw a big difference between the way Roberts proceeded and the way Bork proceeded. [US Court of Appeals Judge Robert Bork was nominated for the Supreme Court by President Reagan in 1987. Though his credentials were impeccable, his extensive academic writing and his conservative rulings as a judge set the stage for highly contentious nomination hearings that ultimately doomed his confirmation.-ed]

Bork was in a more difficult position because he had written on almost all of the important issues in constitutional law and he could hardly refuse to answer questions about things that he had written. By being specific about particular issues he created a huge amount of opposition. Roberts hasn’t written a lot. He doesn’t have a huge academic paper trail and he doesn’t have a long judicial paper trail. So he doesn’t have a lot of stuff on the record that he couldn’t credibly avoid talking about, which gave him the opportunity to be more reticent in answering questions.

BH: A lot has been made of his faith. How appropriate do you think those sorts of questions and comments are about his faith life in trying to determine how someone will rule? Is that a misconception outsiders have?

GK: Well, I don’t think one’s faith determines the way in which one interprets the Constitution. Part of the problem is the expectation that if you have a particular stance with respect to the moral issue of abortion that you must interpret the Constitution with respect to that stance. If the key document people are fighting over is the doctrinal statement that came from the Congregation of the Doctrine of the Faith, it’s titled “Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life.” The gist of it is that Catholics of integrity shouldn’t draw lines between their personal conscientious views and their public policy stances. I think that’s correct.

The problem is how that is applied to different people in different roles. I think the position of an appellate judge is different than a legislator. For instance if a justice of the Supreme Court concludes that the Constitution, properly interpreted, prevents states from imposing certain kinds of restrictions on abortions, that’s a different kind of conclusion than a legislator who says, ‘I think abortion is a moral evil but I’m not going to impose my views on people,’ and facilitates the ability of women to exercise a Constitutional right by funding medical abortions. In that case a legislator is sort of directly facilitating the act of abortion by voting to provide money for it.

But for the judge interpreting the Constitution to say that states can’t do things and that the Constitution places a limit on what states can do here, that’s not requiring anybody get an abortion, it’s not providing immediate access through funding. It’s just saying states can’t prohibit this. I don’t think that’s the right interpretation of the Constitution but that’s not a conclusion that’s reached on the basis of what Catholic teaching on abortion is. There isn’t a particular Catholic doctrinal approach to reading and interpreting the Constitution and that’s what the job of a Supreme Court justice is.