Scalia, Death Penalty, Judicial Resignations

[David Petron]

Two thoughts on your paragraph (below) on disagreeing with Justice
Scalia's "you must resign" position:

1) Your suggestion that a Roman catholic jurist could impose the death
penalty if the conditions identified in Evangelium Vitae obtained
glosses over the difficulty with those conditions.  The important
condition is that capital punishment be necessary for the preservation
of civil society, right?  Well, when could a judge in the United States
ever honestly believe that such a condition is satisfied?  It's
impossible to imagine any criminal who could not be prevented from
destroying our society through some other means less grave than
execution.  So while you're *technically* correct that a Roman catholic
jurist could disagree with Scalia because such a judge could find that
the necessary conditions obtained, that logical possibility has no
actual instantiation.  (Isn't this like inferring a prime mover and
missing the theft of the tent?)

2) Isn't the real problem with Scalia's argument not that there's a
technical way to remain within the "new" Roman doctrine while still
being part of the "machinery of death," but rather that his argument's
conclusion is too strong.  Suppose that a judge couldn't do the
intellectual gymnastics necessary to impose the death penalty by
concluding that it was necessary in a particular case to preserve civil
society.  Isn't the response of judge with integrity to recuse rather
than resign?  It seems to me that recusal is a perfectly appropriate
response in such circumstances.  (Perhaps its akin to civil
disobedience, which Justice Scalia also mentioned briefly, and I need to
think about some more.)

(Hmmm....in between my drafting the two points above and right now, I
see that Tom Berg made one of these points much better than I did.  But
the second point seems correct.)

Best,
David

Rick Garnett wrote:
>
> Dear all,
>
> I think that John Garvey and Amy Coney (in their Marquette article) took up precisely the point that Professor Levinson raises, and concluded that, in States like Florida (or Arizona, where the judge simply is the sentencer -- unless Apprendi is read to require otherwise!), where a judge has discretion to impose a death sentence, Catholic judges are in a tough bind. It strikes me, though, that Justice Scalia's position and role can be meaningfully distinguished from those of an Arizona trial-court judge (and that these distinctions are not mere technicalities).
>
> What's more, though -- at least as I understand the state of the doctrine -- even a Catholic trial judge who was charged with imposing the death penalty could disagree with Scalia's "you must resign" conclusion. Abortion is, the RC Church teaches, illicit, period (so the death-penalty hypo is different from the abortion by-pass hypo). The death penalty (putting aside for now the question whether the current explanations in the Catechism leave the doctrine unstable), on the other hand, is theoretically justifiable, but its imposition will almost always, in practice, be unnecessary, and therefore wrong (according to Evangelium vitae, etc.). A trial-court judge could simply conclude, I suppose, that in a particular case the conditions that the Church says (for now) must be satisfied for the death penalty to be permissible do obtain. His prudential judgment might be wrong, but he would not, in seems to me, be intentionally cooperating with evil.
>
> Best wishes,
>
> Rick Garnett
>
> (At 01:22 PM 2/6/02 -0600, you wrote:
> >Forgive me if I have overlooked someone else's making this point, but I
> >wonder what the implications are for a Catholic trial court judge in, say,
> >Florida, where I gather the judge has the power to override a jury's
> >recommendation either for death or a life sentence. Even if one accepts
> >the proposition that a Catholic appellate judge can "collaborate" in the
> >death penalty system by focusing on the technicalities of review, could a
> >Catholic judge properly sentence someone to death when there is genuine
> >discretion not to do so? (The City of Austin, for example, is currently
> >roiled by the refusal of the Catholic hospital that is administering the
> >Austin city hospital to collaborate in providing abortions, so that plans
> >are underway to construct an elaborate "hospital within a hospital" in
> >order to avoid complicity by the Seton administrators in abortion. Their
> >refusal to compromise has been defended by the local archbishop. If this
> >is a correct understanding of Catholic doctrine, then how could one defend
> >a Catholic judge "directly" imposing the death penalty or, for that matter,
> >a Catholic doctor in participating in the lethal injection? Does the
> >answer turn on analyzing current Catholic teaching and determining whether
> >the death penalty has in fact been condemned to the same degree as abortion
> >has been?)
> >
> >Teresa has been kind enough to mention an article that I wrote some years
> >ago, so I gather it isn't "shameless" self-promotion to note that the
> >gravamen on that article, and another piece I wrote in a book edited by
> >Paul Weithman on Religion and Contemporary Liberalism (this *is* more
> >shameless) is the propriety of interrogating nominees for office as to the
> >"practical" meaning of their religious commitments. I presume that Justice
> >Scalia's comments have made it fair game for the Senate Judiciary Committee
> >to ask (certain) nominees about the extent to which they agree or disagree
> >with Scalia.
> >
> >sandy
> >
> >sandy
> >
> Richard W. Garnett
> Notre Dame Law School
> Notre Dame, IN 46556
> (219) 631-6981
> garnett.4 at nd.edu