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Fencing with Bigots

. . . being an imaginary dialogue between a nominee to a Federal appeals court and members of the Committee on the Judiciary of what once imagined itself “the world’s greatest deliberative body” . . . 

Senator Proudie: I note, Professor Valiant, that Catholic dogma plays a considerable role in your judicial thinking. That bothers me, frankly, because it would seem to threaten rights many people have worked long and hard to protect. Perhaps you could relieve my anxieties?

Professor Valiant: “Catholic dogma” plays no role whatsoever in my theory of judging, Senator. It’s the job of the legislative branch, in either the states or the national government, to enact laws within the bounds set by the Constitution. It’s the job of a federal judge to determine those bounds and to give statutes their proper meaning. This approach to judging has nothing to do with “Catholic dogma.”

Senator Proudie: Do you believe that Roe v. Wade was rightly decided?

Professor Valiant: As a lower-court judge, Senator, I would apply all governing Supreme Court precedents in cases that come before me. Beyond stipulating that, I do not think it appropriate for a nominee to the federal bench to comment on issues on which I might have to rule.

But if you were to ask me a more general question, Senator, as to whether I think that the Supreme Court can get it wrong on occasion, I would say “yes.” I think the Supreme Court got it wrong in 1857 in Dred Scott v. Sandford, when it held that an African-American whose ancestors had been brought to the U.S. as slaves could not be a citizen and thus had no legal standing. I think the Supreme Court got it wrong again in 1896, when the Plessy v. Ferguson decision upheld segregated public facilities in the states. Would you agree that the Supreme Court got it wrong in Dred Scott and Plessy v. Ferguson, Senator?

Read more at First Things – https://www.firstthings.com/web-exclusives/2017/10/fencing-with-bigots

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