AND SPEAKING OF SCALIA: I think he’s off-base in his statement that Catholic judges who believe the death penalty is unjust should resign. There’s a lot to say (scroll down on that link) about Catholic teaching on the death penalty. Fortunately for Scalia, it’s a lot more complex than he seems to believe. But that’s not what I want to talk about. I just want to know why he thinks judges who have substantial disagreements with some portion of the law should resign, rather than simply recusing themselves when the issue arises. Scalia’s position would seem to keep virtually everyone who believes any portion of current law to be unjust off the bench–pro-lifers, pro-choicers, people who hate the drug laws, and so forth. There’s a simpler solution; and one that doesn’t keep faithful Catholics out of the judiciary.

Also, of course, Scalia might want to stop sounding like a cafeteria Catholic of the right. Especially since he can still disagree with the Pope without rejecting Church teaching.

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About Eve Tushnet

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