Miscellany – Pope in the Dock, Justice Stevens retirement, Serin gas and the enduring Flannery O’Connor

Michael Cook notes and ruminates on what I hope is an eccentric call to try Pope Benedict XVI for crimes against humanity in connection with the Catholic Church’s pedophilia scandal, and then segués into other who then should be there:

  • the Secretary-General of the United Nations
  • the executive director of USA Swimming
  • Texas Governor Rick Perry

Tu quoque, the argument that because you did it too, I’m not guilty, must be the worst of all arguments. But anyone with the facts acknowledges that the Catholic Church’s problems are no worse than those of other organisations, and they are probably a good deal better. A reporter for yesterday’s issue of Newsweek had the bright idea of asking insurance companies whether the Catholic Church paid higher premiums because its employees were a greater risk. The answer was No  – and it never had. “We don’t see vast difference in the incidence rate between one denomination and another,” said an insurer. “It’s pretty even across the denominations.”

Cook then notes in moderate detail the secular intellectual defense, in the name of liberating children’s sexuality, of lowering age of consent laws – proposals that make me think “I don’t want this intellectual around any child; there’s more going on here than disinterested philanthropy.”

Putting the Pope in the dock would spark a world-wide debate about paedophilia. Why is it so difficult to police? What is there about our views on sex which encourages it? Should we wind back our hypersexualised culture?

All the indicators are that the sex abuse crisis in the Catholic Church is winding down now as the Pope and bishops get tougher and priests have clearer views on authentic Christian sexuality. But no one is preparing for the coming paedophilia crisis when the oversexed teens of 2010 are 34 and believe they should still have fun with 14-year-olds.

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From the Department of Bombast at the Wall Street Journal, an inflated warning that the retirement of Justice John Paul Stevens “gives President Obama a chance to lay the groundwork for a future liberal Supreme Court majority.”

Not even with this Senate will Obama slide through in an election year anyone to the left of Justice Stevens. He is, after all, “The Supreme Court … liberal standard-bearer,” as the Journal’s own subheadline has it. Others writing about Stevens’ retirement more aptly note the irony that any nominee could easily be to Stevens’ right.

Justice Stevens was particularly infuriating not only on religion cases, larding his opinions with secularist code, but on the disregard for religion in other cases. Robert Nagel summarized some of the case against Stevens in Justice Stevens’ Religion Problem. In a school voucher case:

[I]n four different places in an opinion barely five paragraphs long, Justice Stevens used the word “indoctrination” as a synonym for religious education. Stevens asserted that the voucher program was being used to pay for “the indoctrination of thousands of grammar school children.” He surmised that an educational emergency might provide a motivation for parents to “accept religious indoctrination [of their children] that they otherwise would have avoided.” He decried the fact that “the vast majority” of voucher recipients chose to receive “religious indoctrination at state expense.” And he depicted the voucher program as a governmental choice “to pay for religious indoctrination.”

As striking as it is, this use of the word “indoctrination” does not necessarily indicate hostility to religion. Like the words “sectarian” and “fundamentalist,” which have appeared with disturbing regularity in Supreme Court opinions, “indoctrinate” has a literal meaning that is not pejorative. It can, of course, mean simply to instruct or to teach. But, needless to say, like those other words, it has more sinister connotations. Given the common association of the word “indoctrinate” with totalitarian methods, there might be at least a “slight suspicion” that Justice Stevens did not use the term in its neutral sense, especially since he nowhere refers to public school indoctrination. In any event, the duty to determine whether Justice Stevens’ official positions reflect animosity to religion arose well before the voucher case.

It can be traced back as early as 1990, when the religion clause expert Douglas Laycock noted that under Stevens’ constitutional decisions religion is “subject to all the burdens of government, but entitled to few of the benefits.” Laycock charged that the apparent explanation for this combination of legal positions was hostility to religion. Laycock’s hypothesis ripened into full-blown suspicion by June 2000 when Justice Stevens took the position that the free speech rights of the Boy Scouts were not violated by a state law requiring them to employ an avowed homosexual as an assistant scoutmaster. In the course of his dissent, Stevens offered his opinion about the source of what he termed “prejudices” against homosexuality. He wrote, “Like equally atavistic opinions about certain racial groups, these roots have been nourished by sectarian doctrine.” Whatever he might have meant later by using the word “indoctrination,” there is no question what “prejudices” and “atavistic” mean. The passage is, as Michael Stokes Paulsen of the Minnesota Law School put it, a “slander, disparaging the good faith . . . of any religious worldview—such as those of [some] Christians, Jews, and Muslims—that adheres to traditional views of sexual morality.”

Even decisions that as a formal matter have little to do with religion take on a different coloration when Stevens’ apparent scorn for some religions is factored in. On February 26 of this year, for instance, eight members of the Court ruled that the federal racketeering statute (popularly known as RICO) did not apply to the efforts of the Pro-Life Action Network to shut down various abortion clinics. The rather straightforward reasoning was that, unlike the members of organized crime who are typical objects of RICO prosecutions, the antiabortion protestors did not obtain anyone else’s property for their own use. Since the crime of extortion requires that the offender obtain someone else’s property, the pro-life protests could not be prosecuted under RICO. Even pro-abortion rights advocates like Justice Ruth Bader Ginsburg agreed. Only Justice Stevens dissented. He claimed that “even when an extortionist has not taken possession of the property that the victim has relinquished, she has nonetheless ‘obtained’ that property if she has used violence to force her victim to abandon it.” On the basis of this thin reed Stevens was willing to impose on protestors acting out of profound religious convictions the same draconian punishments that are ordinarily imposed on gangsters.

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Over at TownHall.com and elsewhere in the world of “Movement Conservatism,” Chicken Littles are practicing precision, coordinated vapors over the inference that the U.S. will not commit nuclear genocide in response to chemical, electromagnetic or other non-nuclear attacks. For instance, the mercenary Dick Morris. As Daniel Larison puts it, “quite insane.”

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Thomas Merton wrote that “when I read Flannery O’Connor, I do not think of Hemingway, or Katherine Anne Porter, or Sartre, but rather of someone like Sophocles.” Though O’Connor herself would surely have scoffed at such praise, she is among a bare handful of American writers, modern or otherwise, of whom such a thing might plausibly be said.

But her reputation rests in part on a persistent misunderstanding. Unlike most of the other major American novelists of the 20th century, O’Connor wrote not as a more or less secular humanist but as a believer, a rigorously orthodox Roman Catholic. Her fiction was permeated with religious language and symbolism, and its underlying intent was in many cases specifically spiritual. Yet most of O’Connor’s early critics failed to grasp her intentions, and even now many younger readers are ignorant of the true meaning of her work.

So Terry Teachout concludes his introduction to a lengthy book review of Brad Gootch’s biography of O’Connor.

O’Connor, to her credit, took the homespun beliefs of her fellow Southerners with the utmost seriousness. Even more surprisingly, she regarded them with exceptional imaginative sympathy, seeking to portray in her fiction the sometimes bizarre ways in which spiritual enthusiasm manifested itself in the lives of people who, lacking an orthodoxy to guide them, were forced to re-create the forms of religion from scratch. As she explained in a 1959 letter:

“The religion of the South is a do-it-yourself religion, something which I as a Catholic find painful and touching and grimly comic. It’s full of unconscious pride that lands them in all sorts of ridiculous religious predicaments. They have nothing to correct their practical heresies and so they work them out dramatically.”

Her sympathy, she added, arose from the fact that “I accept the same fundamental doctrines of sin and redemption and judgment that they do.”

(Emphasis added)

Her sympathy for do-it-yourself Christianity may be what makes her work more enduring than things like the Steve Martin movie Leap of Faith, which leavens cynicism with a touch of ambiguous sentimentality. Teachout asks whether O’Connor will endure only by being misunderstood as a satirist rather than a sympathizer writing grotesqueries. I don’t know, but her deep, pervasive Christian faith is well out of the closet for decades now, and her reputation continues to grow.

A Myth lingering

I’ve long been fascinated by the academic idea of “myth” as roughly “the stories by which we live our lives.” In that sense, a myth can be true – indeed, one would hope we’d live according to truth, not delusion.

As Wikipedia says in its opening paragraph on mythology:

…The term “myth” is often used colloquially to refer to a false story; however, the academic use of the term generally does not pass judgment on its truth or falsity. In the study of folklore, a myth is a religious narrative explaining how the world and humankind came to be in their present form. Many scholars in other fields use the term “myth” in somewhat different ways. In a very broad sense, the word can refer to any traditional story...

It was in this academic sense that C.S. Lewis wrote of myth becoming fact in the incarnation of Christ.

There was a time in my life when myth becoming fact would have sounded like gibberish – arrestingly expressed, but gibberish. I know this to a certainty, though I discovered Lewis in college, because I remember branding a new faculty member in my evangelical Protestant boarding high school as “liberal” because he spoke of certain fiction (probably Flannery O’Connor or William Faulkner) as being “true.” “Truth” was “fact” – like in the Bible – I knew deep in my bones.

How I could believe that when Christ said “I am the … truth” is beyond me.  (It’s obligatory, it seems, for former Evangelicals to call their upbringing “fundamentalist,” but this is one intellectual roadblock I had that seems to warrant the equation of evangelicalism and fundamentalism – at least as expressed at my boarding school.)

One such true myth by which we refuse to live is the Dreyfus affair. The Dreyfus affair mythically is about scapegoating and bigotry, with the bending of the rule of law thrown in for good measure. (Oh my! People do still hear about Dreyfus, don’t they? It’s not a myth if they don’t.)

I say we “refuse to live by it because of interment of Japanese during World War II and the interment of suspected bad guys at Guantanamo Bay even today. Sometimes, wrongful convictions through prosecutorial misconduct generally is the phenomenon writ small.

There is a review of a newish book on the Dreyfus affair at the Financial Times which may be of interest. I had forgotten how long the scandal echoed loudly in France, and I had no idea that it may have influenced Theodore Herzl to found modern Zionism.

I have tended to admire France, grudgingly (I was treated as haughtily there as any other American), for marching to its own drummer, but the record clearly is not all admirable.

Then again, what history is all admirable? Even modern Israel is writing chapters that, G*d willing, they will some day rue.

14 years on death row

I wrote about my position on the death penalty a few weeks ago. I won’t even say “coincidentally” because stories like this are so common (I do not go looking for them), but conservative columnist Jacob Sullum writes about a man on Louisiana’s death row for 14 years through serious prosecutorial misconduct – withholding proof that a murderer had Type B blood while the defendant had Type O.

And if you are so inclined, don’t tell me the story proves that “the system works.” The system worked only because two dogged lawyers, God bless ’em, were working the case for free.

“I do solemnly swear … to uphold the constitution ….”

A reminder in the Washington Post today of one of my pet peeves: the routine disregard by politicians of their oath to uphold the constitution.

I’m not a bitter partisan on health reform, but I’m disturbed at the paucity of discussion of the constitutionality of pending proposals. The questions are not trivial.

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although … three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

If “three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution,” why would a politician violate his or her oath to uphold the constitution by insouciantly passing the buck to the Court?

Because they think the bill’s popular? Well, I guess popularity’s a good reason to violate an oath.

Again, it’s not just health care. Politician’s shrug off constitutional objections all the time. I could respect them if they plausibly said “I have spoken to my legal advisers about this, and I believe Bill X is constitutional.” But the more common line is “the Court will have to decide if it’s constitutional.” If so, then why did you swear to uphold the constitution, sir?

Contingent executionism

One of my first posts was, by coincidence, on contingent vegetarianism: a view that it would be okay to eat meat if we raised our meat animals more humanely. A parallel crossed my mind at the time, but committing it to paper wasn’t ripe.

For close to 30 years now, you could say I’ve been a contingent opponent of capital punishment: I oppose it in most cases because, contrary to what seems to be majority opinion, I’m convinced that we have executed many who were not guilty of the crime for which they were executed.

I’m not talking lawyerly parsing of states of mind, either. I mean that we’ve executed people who didn’t do the deed; not people who did the dead but were clearly insane (even if the jury rejected an insanity defense) or who did in in “sudden heat” instead of premeditation. Nor am I talking about fresh-faced frat boys brutally framed. Most of the guys who died unjustly at the hands of the state were career criminals. But “right street, wrong address.” They didn’t do the bad deed that led to their state-sanctioned murder.

How can this happen? We maintain, after all, the ritual of requiring proof “beyond reasonable doubt” in criminal cases. We provide the indigent with lawyers now. Surely the system works.

No, it doesn’t. A notorious crime can cry out for a solution and a conviction. Elected Prosecutors are “as human as the next guy,” as an acquaintance of mine puts it. So are police, though in capital cases I’ve seen more evidence of cheating by prosecutors than by police. Some career criminal the prosecutor (or police) feel got off too lightly last time may be a convenient fall guy. (Believe me: police and prosecutors do carry grudges. There can be no other reason why Phil McCollum has lingered in prison due to a prosecutor’s veto for the last few years. He was a really bad dude who turned his life around in prison very, very convincingly, without the common plea that “you should let me go because I know Jesus now.”)

And frankly, I think fear of crime causes juries to lower that bar of “beyond reasonable doubt.” There are other causes, too: court appointed lawyers tend not to be top-tier; they’re more overworked, in my experience, than the prosecutors are. Bad lawyering for indigent defendants is pandemic.

If you doubt me on the ultimate result, get to know the work of The Innocence Project. I frankly don’t follow them closely because I was convinced of our system’s unreliability even before they began freeing people on the basis of DNA evidence that wasn’t a ripe science when the people were convicted. As I recall the stories that convinced me, prosecutorial misconduct (framing a guy, in essence, or at least withholding powerful counter-evidence) was the cause about as often as mere sloppiness in the cause of convicting someone … anyone.

But my opposition is contingent. I’m not opposed to execution for brutal murders when guilt is clear. There was a man executed in Virginia yesterday who truly seemed guilty beyond reasonable doubt, including being named immediately by a victim he left for dead (another victim did die) and his own admission.

I take no Pharisaical pleasure that I’m better than the guy who died in Virginia yesterday. I confess in my prayers that I’m “the worst of sinners,” and when you come to know what that means, you know it’s true of you, too.  But my sins are not capital crimes in our systems of human justice.

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I had to come back to this post 2 days later because of this illustration of my assertion that “Bad lawyering for indigent defendants is pandemic:” Public defender advises a defendant to plead guilty to a felony that isn’t even a felony. That’s not rocket science, folks. The criminal statutes would be pretty clear on what’s a misdemeanor, what’s a felony.

Guantanamo’s pro bono lawyers

There is a kefuffle going on pitting Liz Cheney (I guess she’s a daughter of the former Vice President) and, I believe, Karl Rove, against the Obama Administration (surprise! surprise!) over the issue of attorneys in the administration having represented Guantanamo detainees prisoners (let’s call the thing by its proper name to promote a little clarity).

There’s some play in the joints of the prior paragraph’s description because I’m having trouble getting agitated over this issue and I haven’t followed it closely. But since my day job is as a lawyer, and my profession generally has been condemning the Cheney/Rove side shrilly, I want to register a dissent.

First, you can tell something about a lawyer’s loyalties by seeing what cases they take on pro bono.

The italicized “pro bono” is key. Lawyers indeed (as the profession and the left have lept up to shout) have an obligation to represent unpopular people. Maybe they even have an obligation to represent unpopular causes, which isn’t quite the same thing. Those obligations, however, are limited by the lawyer’s internal compass (e.g., “can I really represent this person or cause effectively when I find them so odious?”) and there’s no obligation to take on all comers pro bono.

As someone noted a few decades ago, “there’s ‘unpopular causes’ and then there’s unpopular ‘unpopular causes.'” “Unpopular causes” can be a term of art for the left’s favorite projects. You’ll not, for instance, find the left praising me for the handful of “issue” cases I’ve handled pro bono. No, those causes are unpopular unpopular causes among those who buy their ink by the barrel.

Second, and arising from the first, self-congratulation for taking on a merely “unpopular cause,” not an unpopular unpopular cause, is idiotic.

That’s muh story and Ah’m stickin’ to it.

We now return to more nomal fare.