does a lot of different things in
He is the executive vice president of the Federalist Society, an organization of lawyers created to combat the liberal leanings of the American Bar Association.
Leo is also the director of
Catholic outreach for the Republican National Committee, which faces the
prospect of losing seats in both houses of Congress due in part to Catholic
dismay over the war in
Leo spoke with Register
correspondent Timothy Carney about judicial confirmations, the 2006 elections,
a culture of life and being a Catholic in political
Did you always know you wanted to be involved in politics and
I think certainly from my college
days onward, I did. I wasn’t sure that I knew I wanted to be involved in
What were the issues that first interested you in politics?
Well, I was always concerned about two issues fundamentally. One was the culture of life — we didn’t call it that in the 1980s; it was basically the pro-life movement. I felt very strongly about pro-life issues, and felt that that was an important reason for being involved in the political process.
Secondly, as I winded my way through college and then law school, I became very concerned about the way in which various governance institutions were being contorted vis-à-vis what our Constitution calls for. In particular, I thought that there wasn’t a proper recognition of any limits on national power. Secondly, I was very concerned about the role the courts were playing.
For me at least, the role of the courts was tied to general concerns about our culture and the way in which the court was hijacking cultural issues and had been for a long, long time.
Is there any reason why, when the court overreaches, it tends to be in these pro-abortion directions?
The natural human condition is to absorb more power than you rightfully have. That’s part of human frailty: ambition, the quest for authority and power, trying to make oneself the center of the universe. All of that is sort of the natural human condition that all of us in our daily vocations have to resist. It just so happens that if you are on the U.S. Supreme Court, how you carry out your vocation affects a lot of people. So, when you succumb to those natural temptations, it has real serious repercussions for an awful lot of folks. It’s not surprising that that is what happens.
The framers of the Constitution recognized that. The structure was designed to keep those human frailties in mind. That’s why you have separation of powers. That’s why you have checks and balances.
You are the director of Catholic outreach for the Republican National Committee. What do you tell Catholics who say the party hasn’t done enough?
First and foremost, Catholics need to care very deeply about the culture of life. There are many different facets of public policy that intersect with our sentiments in that area.
Certainly legislation. We’ve seen some of that already. We saw the stem-cell battles. We saw some legislation, pertaining to abortion. There are a couple of matters still pending.
In a Congress where you have very narrow margins, or you don’t have control of it, a lot of the things that the president wants, and that the Senate and House have been able to do legislatively on the culture of life, just wouldn’t happen. Would the stem-cell legislative effort have come out differently if we had a five-vote majority in the House and a one- or two-vote majority in Senate? Probably would.
You’ve got a long track record of things that have been achieved — Unborn Victims of Violence Act, Born-Alive Infant Protection Act, the stem-cell and partial-birth abortion legislation.
Then you’ve got appointments. You’ve got judicial appointments. All these Catholics —faithful, church-going Catholics, conservative Catholics — have become more activated in the political process over the past five or six years than they were for quite a while. If you’ve got a judiciary that is going to engage in this overreaching or activism, then what happens to all of these newfound voters and politically active folks? What happens is they become effectively disenfranchised, because all of the issues on which they are electing representatives or on which they are speaking out in the political process are being decided by the courts. The courts are basically overruling the political process.
Catholics clearly were an important force in electing the president. They have been an important force in electing some governors and in some congressional races. We know that. What good is any of that if you’re going to vote on initiatives that courts then strike down? Or you vote for political leaders whose votes in state legislatures or in Congress don’t matter, because whatever they pass gets second-guessed by the court.
Then there’s the broad range of other appointments that the president makes. If you’ve got a very narrowly divided Senate, that is going to affect the kind of appointments the president can put through: Who becomes FDA head or HHS Secretary; who you get as your U.N. ambassador — which, by the way, does make a difference in the culture of life. All of those Senate-confirmed seats are affected once you get a world where you have a very narrow margin, or you’ve lost the Senate.
For pro-life Catholics, in
If you’re in
I think it’s a lot harder for the president to nominate the kind of judges he has been nominating if he doesn’t have the Senate.
Do you think that President Bush’s two appointees to the
It’s too early to know for sure how they’re going to work through very difficult issues of Constitutional interpretation. What one can say is that, if you look at the volume of work they did before they were on the court, there are a couple of important themes that emerge.
There is, in both of them, this concept of judicial modesty — judicial humility. They both recognize that the judicial branch was supposed to be the least powerful and least dangerous of the three. It’s not the job of a judge to make up the law. It’s the job of a judge to actually engage in an interpretive enterprise.
Rehnquist, Scalia, and Thomas: I think they are all pro-lifers personally, but also see the Constitution and the role of the courts the way you describe. Do you think that’s a coincidence? Are there pro-choice judges who would say Roe v. Wade was wrong?
Sure. In fact, if you look at the history of Roe, and a lot of the scholarship that has been published after it, there are a lot of liberals who are probably pro-abortion who are of the view that Roe was a poorly reasoned opinion — that Roe is not legitimate. The most classic example would be John Hart Ely, who was the dean of Stanford law school who said, “This doesn’t make any sense.”
There are within the pro-life movement differences in opinion about what the Constitution means. We have folks in the pro-life community who believe that the 14th Amendment prohibits legalization of abortion. We have folks within the pro-life community who believe that all the Constitutional scheme does is reserve this issue to the states.
Considering the criticisms of Roe v. Wade you point out from all corners of constitutional scholarship, do you think that pro-lifers should believe that anyone Bush would appoint would believe that Roe and Planned Parenthood v. Casey were poorly decided?
I think the president has made it very clear that there is not, in his administration, going to be a litmus test for judges on any issue. I think it’s wrong to precondition one’s nomination or confirmation on how an individual says he’ll vote in a particular case or on a particular issue.
If you’re pro-life, the problem that you’re having right now is that judges are engaging in ends-oriented decision-making, and that the process has become highly politicized. To turn those tables and to politicize it in the opposite direction is at best a short-term fix.
There are lots of groups in
There is no expectation as to time. I think the perception is that there is nothing clear in the near future. However, I think what motivates people to continue to prepare and to stay ready is the fact that the demographics of the court are such that a vacancy is never a remote possibility. If you look at the ages of the justices, the amount of time they’ve served together, you’d be foolish not to be thinking about the issue and to be ready for it. You need to be prepared.
What does it mean to be prepared? There are a couple of components to that. Obviously, you want to have a good sense of who’s out there in the way of prospective candidates, what you think of them and whether they would be good members of the court. The other issue is assembling a coalition — a team of people who will be there to defend a nominee. You obviously want to make sure you have a well-oiled confirmation machine ready to do battle with the left.
Compared to when you first arrived
I think there’s clearly been an increase in the number of people of faith who are active in politics and who are having an impact since I first arrived here 15 years ago.
Do you think it’s coincidental that the four socially conservative justices on the Supreme Court are Catholic?
I don’t have a theory about it. No. I don’t think you can say there’s a reason why the most conservative members are Catholic. I do happen to believe that a philosophy of judicial restraint is something that a faithful Catholic is wired to understand. What do we learn as Catholics? Two of the things we learn are the conservative virtue of humility, which is something that should permeate many aspects of our lives; and secondly, the idea that living by a set of rules and having a pretty sophisticated structure to one’s belief is important. When you look at judicial restraint, it’s respect for rules and humility that matters the most.
Now, I don’t think that there are more Catholics than people of other beliefs who believe in the principles of judicial restraint.
The judicial confirmation battles have been among the ugliest parts of
I have a lot of friends who have been through the process. It is at times an ugly, demeaning, nasty process. I think what our faith teaches us is that we have to find opportunities to produce value joyfully, even in cases where life is nasty, brutish and short. I think there is an element of self-sacrifice and self-mortification involved in agreeing to a political appointment and a political confirmation process that will be brutal and demeaning. But if you believe that we all have certain vocations in life, and that the only way we’re going to improve the human condition is occasionally to make sacrifices and do the right thing, then you have to do it.
For me personally, for me as a Catholic, I try to have a positive attitude. I feel I have a duty to try to make the process as rational and humane as possible. My standard is I always want to be able to say that whatever I am doing in the process, I wouldn’t mind being done back to me. When we’re out defending a nominee or fighting a nominee, I want to make sure the tactics I use are consistent with that.
Timothy P. Carney