Fair and Balanced MSM opinion on Roberts (Yeah, right!)

Well, Tim Rutten of the Los Angeles Times tries to be fair in this column, published in The Register-Guard, Eugene, Oregon, USA. I suppose he succeeds...from a Reasonable point of view.

Mr. Rutten starts with the Mercutio gambit; you know, "A pox on both your houses!" He lambasts both sides for their alleged hypocrisy in addressing Roberts' Roman Catholicism as an issue in the Judge's nomination:

On the right are various evangelical activists and cultural conservatives who insist that any objection to Roberts' confirmation or mention of his Roman Catholicism amounts to religious bigotry and the imposition of a constitutionally prohibited ``re- ligious test'' for office. On the other side are various left-wing special-interest groups who seem to be arguing that his faith precludes any independent thought on his part.

Both views have been given free access to the chat shows and op-ed pages, and both are pernicious nonsense. The evangelical activists and their GOP fellow travelers have presided over the virtual sacralization of our politics and are without standing to raise an objection to anyone discussing religion at this point.

Moreover, four of the Democratic senators most likely to question Roberts closely when he appears before the Judiciary Committee - Edward Kennedy, Joseph Biden Jr., Patrick Leahy and Richard Durbin - are Roman Catholics.

As far as the left-wing critics go, is it really their position that the three Catholics already on the court - Antonin Scalia, Clarence Thomas and Anthony Kennedy - always vote in unison? Obviously not, so what is this really about? In fact, what precisely is it that Catholicism is supposed to predict in judicial behavior?

William Brennan Jr., the lion of the Warren Court, was a Roman Catholic, but so was Roger Taney, who as chief justice wrote the most abominable decision ever handed down by the court in the Dred Scott case.

Set aside for a moment Mr. Rutten's ridiculous assumption that somehow Roman Catholics can't be anti-Catholic. Doesn't he strike anyone else as being a tad hard on the political right AKA the religious right? Since when can US politics, or anyone else's, undergo a sacrialization? Is there some sacred character to American Democracy in action that I'm missing? Or is he trying to say, once again, that religion has no place in politics? Either way, his criticism of the political right falls like a brickbat compared to his left-wing chastisement. There, he only questions the logic, not the integrity, of their ignorant political calculus.

So much for the Mercutio Gambit as a legitimate attempt at fairness. He does better, however, when he actually analyzes why bringing up Judge Roberts' faith is a non-starter. First of all, he wisely asks what aspect of his faith is a reliable predicator of his judicial performance:

In reporting the contents of the most recently released cache of documents from the young Roberts' service as a legal adviser to President Reagan, The Washington Post recently chose to emphasize his opposition to legally expanding women's rights. At one point, the Post noted, Roberts wrote a memo wondering ``whether encouraging homemakers to become lawyers contributes to the common good.'' The phrase, ``common good,'' is a bedrock fixture of Catholic social thinking. So, is the sentiment an expression of his religious faith?

By contrast, Los Angeles Times reporters looked at the same memoranda and felt they portrayed Roberts as a remarkably steadfast opponent of commercializing or in any way cheapening the presidency, even when the pressure to do so came from Reagan's friends. At one point, Roberts urged deletion from a campaign speech a line that called the United States ``the greatest nation God ever created.''

The young lawyer dryly noted, ``According to Genesis, God creates things like the heavens and the earth, and the birds and the fishes, but not nations.'' In our piety-besotted times, that common sense seems a breath of fresh air. Was it a consequence of his Catholic faith?

Having put that tired dog to bed, he then explores the question few other commentators outside the blogosphere have bothered to ask:

Can such a question be answered precisely, even in our own era? Not unless it takes into account the church's recognition that application of its moral teachings entails nuance and latitude. In the matter of Roberts' nomination, for example, the relevant point is not what the Catholic Church teaches about abortion - we all know that - or anything else, for that matter, but how it urges its members to apply the principle.

Then he gets Foolish! He references Professor Bainbridge:

University of California, Los Angeles law professor Stephen Bainbridge, who writes about Catholic social thought with great precision, recently noted that the Vatican document most relevant to Roberts' candidacy is its ``Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life.'' On both political and judicial issues, Bainbridge wrote at www.professorbainbridge .com, ``the Church distinguishes between formal and material cooperation with evil.''

Formal cooperation, as the doctrinal note defines it, occurs when a person ``gives consent to the evil action of another (the actor). Here, the cooperator shares the same intention as the actor.''

Material cooperation occurs when ``a cooperator performs an action that itself is not evil, but in so doing helps the actor perform another evil action. The moral quality of material cooperation depends upon how close the act of the cooperator is to the evil action, and whether there is a proportionate reason for performing the action.''

About a year ago, then-Cardinal Joseph Ratzinger, now Pope Benedict XVI, elaborated on the note by writing, ``When a Catholic does not share a candidate's stand in favor of abortion and/or euthanasia, but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons.''

As Bainbridge - whose personal politics are conservative, generally Republican - wrote, ``Judicial decision making, even with respect to issues like abortion and euthanasia that raise moral questions under Church teaching, does not per se constitute formal cooperation with evil.''

The relevant and permissible questions to be asked of Roberts, Bainbridge convincingly argues, have to do with his judicial philosophy. His convictions regarding theology or his relationship with the Catholic Church are outside the reach and, frankly, the competence of the U.S. Senate and the overwhelming majority of media commentators, right and left.

Well, following the media's penchant for oversimplification, Mr. Ruttin paraphrases where he should quote. "Cause the truth ain't that simple! In actuality, Professor Bainbridge had this point to make regarding Judge Robert's judicial philosophy--and any relevence his Faith has to it:

...where a Catholic judge believes his participation in a particular case would constitute formal cooperation with evil, the judge should recuse himself. The possibility that a judge (or justice) might have to recuse himself in occasional cases, however, does not strike me as a legitimate reason to deny the judge a seat on the bench.

If I were a senator, I would therefore confine my questions to Judge Roberts about his faith to the following:



1. Do you believe that a judge should recuse himself if his participation in a particular case would constitute formal cooperation with evil?
2. Would you recuse yourself under such circumstances?



I'm inclined to think that one should not ask Judge Roberts whether he believes reviewing death penalty, abortion or euthanasia cases would constitute formal cooperation with evil. Even hot button constitutional issues are often highly fact specific. It would be unfair and unworkable to ask a judge to prejudge every possible variant of every issue that might come up in a long career. Indeed, given Judge Roberts' youth and the ever-evolving complexity of society, he is likely to face moral issues during his tenure on the court that are not on anybody's radar screen today. What matters is the general principle.

Still, I give Mr. Ruttin his due. He cited Bainbridge period. Thus, this column on Judge Roberts rates as one of the most fair ones I've seen from Reasonable MSM. I won't gloat over the foam-swallowing the newsroom editors had to do in order clear it for publication. I won't!

Su, yeah. MSM actually deals a fair story. That MSM's idea of fairness is still lob-sided in favor of Reasonable policy-chasers and pundits is a post for another time!