Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, July 28, 2016

A “Man for Others” . . . Well, Some Others, But Not All

Tim Kaine -- DNC 2016

Tim Kaine had this to say last night in his speech (here) accepting the Democratic nomination for Vice President:

I went to a Jesuit boys high school, Rockhurst High School.


Wow, that’s a big line for the Jesuits.

Now we had a motto in my school, “men for others.” And it was there that my faith became something vital. My north star for orienting my life. And when I left high school, I knew that I wanted to battle for social justice.

No doubt later today, there will be many posts on social media and on various Jesuit, and Catholic, and political blogs extolling the virtues of a Jesuit education and repeating with pride the phrase that Pedro Arrupe made so famous: “Men for others.”

And no doubt many of these same commentators will hold up Tim Kaine as an exemplar -- beaming with pride at the fact that Kaine is both the product of Jesuit education and that he openly identifies himself as such. And, indeed, Kaine tied his Jesuit education to his vocation in politics – the “north star” that oriented his life and made him want to “battle for social justice.”

To truly be a “man or woman for others” is surely to follow the “north star” by which to set one’s course in life.  But to do so authentically and with integrity means acting with justice towards all the members of the human family.

And this includes the unborn. Child in the womb

Unfortunately, Tim Kaine’s political career is marked by a conscious disregard for the most vulnerable human beings.  He insists, of course, that he’s “kind of a traditional Catholic” in that “personally I’m opposed to abortion” (here), but he strongly affirms Roe v. Wade.  His rationale for this position is the same intellectual drivel and incoherence that Mario Cuomo offered back in 1984 that has become the pat answer of pro-choice politicians who claim to be Catholic. (For my critique of Cuomo’s address see here).

Kaine claims that abortion is in “the personal realm,” that abortion and other matters of “intimacy” are “moral decisions for individuals to make for the themselves and the last thing we need is government intruding into those personal decisions.”

This, of course, is not an argument as to why the abortion decision should not be a matter of public concern, only a reaffirmation that it should not be.  And it makes no sense if, as Kaine says (together with Cuomo, and Biden, and Pelosi, and many others) that he believes what the Church holds concerning the sanctity and inviolability of innocent human life in the womb.  Or rather this makes sense only if belief in the sanctity and inviolability of innocent human life is inherently religious, and so unfit as a goal of public policy.  This is intellectually vapid.  Seeking to protect the lives of unborn human beings is no more incapable of being described and justified in secular terms than the humanitarian work that Tim Kaine performed in the Jesuit Volunteer Corps in Honduras.

  IHS Jesuits
Indeed, the Society of Jesus bluntly disagrees with Kaine’s flawed characterization of the issue. In its prophetic document Standing for the Unborn, the Jesuits in the United States made plain that “abortion is a human rights issue.” As such, it stands on at least the same moral footing as the work that Tim Kaine did in Honduras.

Moreover, abortion is not, said the Jesuits, merely a “personal preference or private choice” precisely because the decision involves the killing of an innocent human being.

Further, opposition to abortion does not, says the Jesuits, involve “the imposition of a narrowly-confined religious position upon an unwilling majority” but “reasonable arguments accessible to people of all faith traditions and people of none.”

Moreover, because Jesuits are dedicated to “faith and the promotion of justice,” all Jesuits and Jesuit institutions “must seek an end to the injustice of abortion.”

Finally, Jesuits are committed to the process of respectful dialogue, confident that the truth will persuade and succeed in “narrowing the gap between the current civil law of our nation and the demands of the moral law.”  This “way of proceeding” of course precludes the kind of “go along, get along” approach of ignoring and renouncing the pro-life cause so common among Catholics in public life.

But Tim Kaine has not proceeded on the path of social justice set forth by the Society of Jesus. He has instead earned a 100 percent approval rating from Planned Parenthood and NARAL Pro-choice America (here).  And, as Rick has pointed out, Kaine has now repudiated his long held support for the Hyde Amendment (here).  Since becoming Hilary Clinton’s running mate he has embraced the view set forth in the Democratic Party’s platform calling for repeal of the Hyde Amendment and full federal funding for elective abortions under Medicaid, and for payment for abortion under all health insurance plans (p. 37).

There is no social justice in this perverse proposal for the subsidized killing of our youngest and most vulnerable relations.  To truly be a “man for others” one cannot exclude certain members of the human family either because it is politically expedient, or because it helps to advance one’s career.  To do so is the repudiate the very premise that purportedly animates one’s pursuit of social justice in the first place – the dignity of the human person.

Black Hole

Roe v. Wade is no “north star.” It is a black hole that has set our nation, our Constitution, and the moral lives of countless individuals on a calamitous course – a road to the heart of darkness.

Given all this – given the substance of his position on the most vital civil rights issue of our day, and not simply his rhetoric – Tim Kaine’s overt identification with the Jesuits should be a source not of pride but of embarrassment.  It is a sign of failure – in catechesis, in training in philosophy and reason, in the formation of character -- especially courage.

Of course as with any person, Kaine is not simply a product of his high school education and his service in JVC.  He has also been formed by his legal education, and practice, and government service, and party affiliation.  He has been formed by larger currents of moral an political thought operating in the culture.

One would like to think that he has also been formed by his life in the Church – his participation in the sacraments and parish life. But where is this in evidence when it comes to the issue of life?  Perhaps in ways unseen that (we hope and pray) will emerge.

Still, rather than the back-slapping that one is likely to see among the Jesuit fraternity of priests, alumni and alumnae, one would instead hope to see some genuine introspection.  If Tim Kaine is an exemplar – if he truly represents the best of what Jesuit education is all about – then I would suggest that the current leaders, teachers and alums of Jesuit institutions should ask themselves a few simple questions: “Where did we go wrong? How can we correct this?”

July 28, 2016 | Permalink

Wednesday, July 27, 2016

Character matters (especially for new lawyers)

Yesterday the Institute for the Advancement of the American Legal System released the results of a multi-year study in which 24,000 attorneys from all 50 states participated. One key conclusion is that new lawyers need not only IQ and EQ, but also “a high ‘character quotient.’ Integrity, work ethic, grit, and common sense are just a few of the necessary characteristics.” From the report:

[According to the lawyers surveyed, new law school grads] need to have a blend of legal skills and professional competencies, and, notably, they require character. In fact, 76% of characteristics (things like integrity, work ethic, common sense, and resilience) were identified by half or more of respondents as necessary right out of law school, while just 46% of professional competencies (like arriving on time, listening attentively, and teamwork) were identified by half or more as similarly necessary. Legal skills (like legal research, issue spotting, and legal analysis) were identified by half or more of respondents as necessary right out of law school to an even lesser degree than either characteristics or professional competencies. Specifically, fewer than half of the legal skills we asked about—just 40%—were identified as necessary right out of law school. This is not to suggest that legal skills were viewed as unnecessary by respondents. In total, 98% of the legal skills we asked about were identified as necessary, but they were identified as foundations that could be acquired over time and that were not necessary as the new graduate entered his or her career.

As Catholic law schools work to articulate how a school's Catholic identity can and should matter to students faced with a difficult job market, these insights are key.  Other law schools can build character too, of course, but if we've been taking seriously the relevance of whole-person education, meaningful community, mentoring, and moral formation to our Catholic legal education project, we should have a significant advantage. 

July 27, 2016 in Vischer, Rob | Permalink

Reporting on the murder & martyrdom of Fr. Jacques Hamel

At Get Religion, Terry Mattingly has an important post up on the importance of reporting the facts, including the "hellish details", of the story.  Here's hoping we see more, in terms of responses, than just a flurry of hashtivism.

July 27, 2016 in Garnett, Rick | Permalink

Well, that was quick: Sen. Tim Kaine flips on the Hyde Amendment

Sen. Tim Kaine, the Democrats' candidate for Vice-President, is a practicing Catholic, and his position on abortion has been described in some quarters as "nuanced," because, in the past, he signed legislation allowing modest regulations (like parental notice) and limiting partial-birth abortion.  Apparently, though, only a month after telling a magazine that he supports the Hyde Amendment . . . he no longer does.  The new Democratic platform is, with respect to abortion, the most aggressive and radical its ever been -- and this in a year where the VP candidate is described by some as a "Pope Francis Catholic."  (I imagine the Holy Father would say, "well, sure:  like me, and like all of you, he's a sinner.)

". . . for Wales?"

July 27, 2016 in Garnett, Rick | Permalink

The leaked DNC emails reveal big-money backing for anti-religious freedom efforts

Story here.

July 27, 2016 in Garnett, Rick | Permalink

Tuesday, July 26, 2016

More on Trump, Clinton, Willing, and Proportionality

Following up on Rick's quick reply to me, an even quicker sur-reply:

Actually, in discussing votes for either Trump or Clinton, we (I?) kind of went on a tangent about whether one was/wasn't "willing" the accompanying bad stuff in voting for either candidate. In fact, neither one of us is really talking about "willing" the bad stuff--and whether you will the bad stuff does not (I think) depend on whether the bad stuff is substantially certain to happen. Theologians correct us here, but ... Even if one knows that Trump's day-to-day outrages will happen, and even if one knows that Hillary's attacks on religious freedom etc. will happen, that doesn't mean one wills either of them. You can will the good things associated with your chosen candidate (which can include, as Rick has indicated, the good of stopping the other (horrendous) candidate), and conclude that those good things outweigh the bad that is likely to come with the chosen candidate. So, as seems most common in the voting context, we are  talking (I think)  about material cooperation and proportional reasons for voting, not about formal cooperation. Again, theologians set us right if needed.
So then the issue becomes how bad each candidate is, given all the factors, and the alternatives, including the alternative of voting for neither. Then the point of my original post's first half--the response particularly to Rick's leadoff post--was that in such a calculus, Trump will still be very seriously bad, day to day and in unknowable, uncharted ways, even with all the checks on him. (As for "laziness" as a check, he doesn't seem to be very lazy about the things--often petulant and idiosyncratic things--that interest him most; that's part of why he's so risky.) And the point of my original second half was the very serious bad things with Clinton, which for me are more isolated but nonetheless very serious.


July 26, 2016 in Berg, Thomas, Current Affairs | Permalink

A response to Tom Berg regarding Trump, voting, etc.

I appreciate Tom's response to my recent post .  Although, unlike Tom, I tend to think that most of the policy positions associated (at least, associated until recently!) with the Republican Party (though not with the current nominee!) better serve, on balance, the common good than those associated with the Democratic Party, I agree with very much of what he says in his post.  

I agree, to be clear, that Donald Trump "exhibits a narcissistic disorder, obsessed with his own status and avenging slights, and reflexively doubling down in response to any criticism or challenge."  I agree that many of his statements "have been especially erratic, and toxic both in the immediate sense and to the long-term health of public discourse."  And, I agree that (quoting my earlier post) the "state of affairs that is likely to come to pass as a result of the election of [Donald Trump]" will almost certainly include many such statements and many erratic actions.  I suggested in my post, and I continue to think, that "Congress, the courts, the press, the bureaucrats, [and Trump's] laziness and ignorance" would meaningfully constrain him, were he elected, but I agree they would and could not completely constrain him.  It's a bad, bad situation.

All that said, I'm not convinced by what Tom says here:

So ... if the argument "I don't will the bad things in Trump" depends upon a prediction that others will prevent those bad things, then one is in fact willing the day-to-day outrages and fiascoes that clearly, by nature, cannot be prevented.

It seems to me that it could be that what one "wills" (I guess I'm thinking Model Penal Code-type "purpose" here) when one votes for Trump is simply and only that the agenda of a Clinton Administration (which would be much less constrained by the press and by presidential laziness) be stopped.  What one "wills" need not include, it seems to me, the erratic behavior and offensive statements that one (with regret) expects.  (Cue the arguments among those who are smarter than I am about whether one "intends" what one "knows", etc. . . .)  

I also think, in response to Tom's statement that Clinton's "flaws are not in his category," that while Clinton's set of flaws is different than (though it overlaps with) Trump's, they are numerous, serious, and pervasive enough to make her (like him) unworthy of the office she seeks.  It's a shame, in my view, that, perhaps because of entirely justified disapproval of Trump, many seem to be accepting the notion that Clinton is simply a garden-variety politician with the usual flaws, slip-ups, and imperfections.  I don't think the evidence supports that view.  But, that's another issue . . .   


July 26, 2016 in Garnett, Rick | Permalink

Monday, July 25, 2016

The Unavoidable Problem with Trump

In response to Rick: The most serious problem with Trump is not his policy prescriptions. Several of them are awful; in my view, a few, like infrastructure rebuilding and probable Supreme Court appointments, have positive elements. But it is not enough to predict or hope that the awful announced policy prescriptions would be blocked by others--even if that would likely happen. (I realize Rick isn't adopting that position but is just saying it's reasonable.) The fundamental problem is Trump's personality: the man exhibits a narcissistic disorder, obsessed with his own status and avenging slights, and reflexively doubling down in response to any criticism or challenge. The latest confirmation--small but striking, and the latest of many--was his remarkable post-convention monologue last Friday, in which he said he didn't care about Ted Cruz and then proceeded to spend 10 minutes revisiting what Cruz did and the revenge that he, Trump, would take. There is absolutely no telling what Trump might do with the day-to-day powers of the Presidency, including the keys to the nuclear codes. We would be in virtually uncharted waters.

If Trump is elected, then even if other actors would block his bad policy initiatives, there would be no way to avoid putting the day-to-day power of the office in his hands. There is no way to avoid saying, "This is the man who will make the crucial judgments in whatever (unknowable) crises arise." In that sphere, military and other actors would presumptively obey his orders, some of which the press might not learn about in time to speak against them. Some officials might resign rather than enforce them, but that dynamic puts us on the short road to constitutional crisis. In addition, the day-to-day power of the office includes public statements; his have been especially erratic, and toxic both in the immediate sense and to the long-term health of public discourse. No other actor--Congress, bureaucrats, press--can stop those, or their effects. They are inherent in electing him.

So ... if the argument "I don't will the bad things in Trump" depends upon a prediction that others will prevent those bad things, then one is in fact willing the day-to-day outrages and fiascoes that clearly, by nature, cannot be prevented. #NeverTrump.

This argument does not entail voting for Hillary. Of course, those who think the Democrats are wrong on most issues will be disinclined to vote for her even to avoid Trump. That's not my situation: I am a Democrat who thinks that party's positions on many issues are better for the common good. But I nevertheless have a serious struggle. That's not because Clinton's personality flaws are as bad as Trump's: however significant, her flaws are  not in his category. It's primarily because of two (for me) very serious issues--familiar but sadly becoming even more pointed this year. First is the further intensification of the party's abortion position. As  a pro-life Democrat, I put a high priority on strengthening social supports in order to reduce economic pressures to abort; but the party's new attack on the Hyde Amendment, and its increasing tendency to view abortion as in no way regrettable, make the conflict for pro-life liberals more serious than ever.

Second, as a religious freedom advocate who also supports some of the policies that have come in sharp conflict with religious tenets (policies like sexual-orientation anti-discrimination laws and the Affordable Care Act), I am disturbed by having seen first-hand the unwillingness of more and more Democratic leaders to support any accommodations that would meaningfully balance these two goals--particularly accommodations that would allow faith-based service organizations to follow their tenets while continuing to do their work helping others. This dynamic has become very powerful, very suddenly, and there are reasons to think that the Clinton executive branch will be even less inclined to accommodate than the Obama executive branch has been. (Note that in some cases, such as hiring based on religious belief by groups receiving federal grants, Obama has preserved freedom for religious organizations to maintain their faith-based nature, against intense pressure from anti-accommodation progressives. I have no confidence that Clinton will do the same.)

But even with these serious (in my view) problems with Clinton's likely policies, I cannot in conscience vote for Trump. I can't tell myself it would be OK--even on balance--because others will check him in in office. There will be pervasive features of his presidency that they can't check. So if I ultimately cannot vote for Clinton, the only options for me would be to vote third-party (I'm not attracted to the current ones) or write in someone.

This is a pretty long-winded assertion of my judgments, and I know we don't want election discussion to take over the blog. But in responding to Rick's suggestion about avoiding Trump's problems, I thought I should explain my thinking more fully.

July 25, 2016 in Berg, Thomas | Permalink

Pro-Life Democrats on How the Platform "Betrays Millions of the Party Faithful"

My colleagues at Democrats for Life, Kristen Day and Charlie Camosy, spell it out in the L.A. Times. The platform not only attacks the Hyde Amendment, they point out; in addition, it calls for repeal of any regulation impeding access to abortion, acknowledging no considerations on the other side, and removes the 2012  platform's endorsement of religious liberty in the context of abortion. A bit more:

The abortion plank in the 2016 Democratic platform effectively marginalizes the voices of 21 million pro-life Democrats. It means the party that is supposedly on the side of justice for the vulnerable no longer welcomes those of us who #ChooseBoth; that is, those of us who want the government to protect and support prenatal children and their mothers....

The Democratic Party's abortion stances have already caused many to leave the party, and many more will drop out because of the platform wording. The percentage of extreme abortion rights advocates is increasing in the party, but only because the total number of Democrats has shrunk to its lowest level since the Hoover administration.

July 25, 2016 in Berg, Thomas, Current Affairs | Permalink

Dualism & Doctrine

In light of arguments by Robby George and others that we are in a neo-Gnostic age, Dov Fox and Alex Stein have posted a fascinating new paper, Dualism and Doctrine. Here's the abstract:

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing law pins the answer to all these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” This key assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.

This essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.


July 25, 2016 in Vischer, Rob | Permalink