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Stalking Scalia

By Ronald A. Cass

Step aside, Nino. Expect to hear that phrase repeated often, as liberals increasingly strive to find ways to keep conservative justices - especially this conservative justice - from voting on cases.

One of the week's big news stories was the dramatic account of Supreme Court Justice Antonin Scalia, accosted outside a Boston Mass, using a Sicilian hand gesture to explain what he would say to people who question his very public commitment to Catholicism. The implicit question wasn't whether it was alright for a judge to be a practicing Catholic. Instead, it was whether Scalia was improperly committed to positions on cases coming before the Court. Especially on matters like abortion, where the Catholic Church has an official position.

Scalia's gesture said, "I've got strong views and strong religious beliefs, but as a judge I follow the law - and I'm not going to spend time explaining myself to others; now leave me alone." Of course, giving the gesture a more colorful meaning makes a better story. But for those looking to have something to say, anything connected to the accusation would be enough.

The implication that Scalia, as a devout Catholic, would follow Catholic dogma, rather than the law, is deeply offensive. Its offensive to Scalia, a long-serving, respected jurist and devotee of the rule of law. It's offensive to Catholics, a replay of the attacks on John F. Kennedy, who, opponents whispered, would as President be subservient to the Pope.

More to the point, it's offensive to our legal system. Our system works because judges are insulated against ordinary political forces, are subject to a whole series of checks on how they decide cases, and are supposed to come to the cases as impartial decision-makers - not as blank slates, but as men and women who have not pre-committed their votes. That is essential to the rule of law.

Yet publicly committing to a position - or to a set of beliefs and interpretations - is exactly what liberal Senators and the interest groups that support them were demanding during the recent confirmation hearings of Chief Justice John Roberts and Justice Samuel Alito. No one on the Left seemed concerned that the nominees would be open to criticism, or even recusal, if they declared on the record that the Constitution contained a right to privacy that protected women seeking abortions from state interference or if they embraced a particularly expansive vision of such a right.

That Justice Scalia would be criticized for a public embrace of Catholicism while attending Mass in Boston is especially ironic. After all, the senior Senator from Massachusetts, Ted Kennedy, has proclaimed himself a practicing Catholic, a proclamation in keeping with his family's public position. Yet Senator Kennedy supports broad protections for abortions, embracing the theory that the Constitution gives women a privacy right that encompasses the choice of abortion, free from state control. He also supports same-sex marriage and other liberal causes that go against the teachings and beliefs of the Catholic Church.

The real issue, then, isn't that Justice Scalia is a devout Catholic.

The real issue is that his interpretation of the Constitution is not what many pundits, professors, and public figures want it to be.

* * *

The game now is to find a way of making it seem that Scalia's personal life and conduct commit him to positions on important legal issues in a way that interferes with his ability to decide matters impartially - not because Scalia has in fact done so and not because his accusers care about impartiality. Instead, the game matters because Scalia is the leading voice for a set of legal propositions that run counter to the political, social, and constitutional agenda of the dominant voices in almost every major element of America's Speaking elites.

That is why Justice Scalia's comings and goings, his associations, his speeches, all have become the focus of media attention. It is not simply his Catholicism that is an issue. It is anything he says and does that can be grist for a demand that he step aside from a case where his participation would matter.

Cases involving the Bush administration, hence, would be off-limits to Scalia because he has friends in the administration. Cases involving church-state relations are off-limits because Scalia has strong commitments to his religion. Cases involving abortion are off-limits because official Catholic theology opposes abortion. Cases involving any important question that could have a conservative, constitutionalist answer are off-limits because Scalia frequents Federalist Society events, has Federalist friends, served as a speaker and advisor to Federalists - and, despite having no formal position on such matters, Federalists are known to favor conservative-constitutionalist answers to important legal questions.

The new Scalia Watch didn't come about merely because he is lively, engaging, and willing to speak with relative candor and clarity on some of the most difficult and divisive issues to come before the Court.

Far more, it reflects a dedicated effort to make him a news item in hopes of disqualifying him from deciding, or limiting his influence on, those very issues.

* * *

The growing interest in making Scalia newsworthy reflects a change in the political fortunes of liberal causes and of the Democrat Party. If you don't win elections - so your party doesn't control the White House, the Senate, the House of Representatives, or most State Houses - the courts by default become the instrument of choice for implementing your political views.

That's why large numbers of Democrats have tried to make confirmation of judges a straightforward test of the judges' personal and political views, rather than a test of their competence and commitment to interpret the law as written. That strategy failed to derail Roberts, Alito, or most other able nominees. So a new strategy was needed:
finding a way to keep judges they didn't want on the bench from deciding cases they and their supporters care about most. That's a dangerous move, one that threatens the independence of the courts.

Unless we recognize that the courts are supposed to be separate from politics - and that we should not treat our judges the way we do our politicians - we risk permanent injury to the rule of law. People pressing an agenda that puts this at risk should receive a more meaningful Sicilian salute than the one Scalia deployed.

Justice Scalia's gesture shouldn't be the big news story. The effort to make him into news should.

Ronald A. Cass is Chairman of the Center for the Rule of Law, Dean Emeritus of Boston University School of Law, and author of "The Rule of Law in America" (Johns Hopkins University Press).

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