"He Just Had to Say (or Do) That!"

Thomas Droleskey, Ph.D.

President George W. Bush announced on Tuesday, July 19, 2005, that he is nominating United States Circuit of Court of Appeals (for the District of Columbia) Judge  John Roberts to replace the now retired Sandra Day O’Connor as an Associate Justice of the Supreme Court of the United States.

The propaganda machines began to go into overdrive immediately following Mr. Bush’s announcement. Some pro-life and “conservative” organizations were hailing the nomination of Judge Roberts. Various and sundry pro-death groups were noting with alarm the fact that Judge Roberts had worked on briefs for Solicitor General Kenneth Starr in the administration of President George Herbert Walker Bush to use the case of Rust v. Sullivan to ask the Supreme Court to declare that the case of Roe v. Wade “was wrongly decided and should be overruled.”  In the 2003 confirmation hearings for the Federal appellate court judgeship that he now holds, however, Judge Roberts told the members of the Senate Judiciary Committee that the views he expressed in that brief were those of the administration for which he worked, not his own.

More ominously, though, Judge Roberts, who has a law degree from Harvard Law School and clerked for then Associate Justice William Rehnquist before the latter’s elevation to the position of Chief Justice in 1986, said the following about his view of Roe v. Wade:

Roe v. Wade is the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

This statement, which has several variations, is the brainchild of presidential adviser Karl Rove, used for the first time in 2001 to help former Missouri Senator John Ashcroft secure Senate confirmation to be Attorney General of the United States. The now retired Attorney General sounded and looked visibly uncomfortable as he coughed out the words that stated Roe v. Wade was “settled law” and that he would enforce that law fully. Most, although not all, people sound and look uncomfortable when they take the first steps down the slippery road of the loss of their integrity to secure some temporal gain here in this vale of tears. Ashcroft did in 2001, but he certainly lived up to his pledge to “enforce the law,” sending his Solicitor General, Theodore Olsen, to argue in December of 2002 that Joseph Scheidler was the equivalent of a “bandit” under the 1946 Hobbs Act for his having “deprived” legitimate businesses (baby-killing mills) of the income that would have been generated had he not persuaded women to kill their preborn children. Ashcroft may have been doing the bidding of Karl Rove to get himself confirmed in 2001. He had learned how to dance the administration dance very well within two years (and the Supreme Court, amazingly, had the good sense to reject the administration’s claims in an 8-1 decision in the case of N.O.W. v. Scheidler, February of 2003).

The same chorus of conservatives, many of them Catholics, who said that Ashcroft had to say what he did in his 2001 Senate confirmation hearings are repeating their mantra again to justify what Judge Roberts said in his 2003 Senate confirmation hearings. One Catholic activist wrote the following after I had pointed out Mr. Roberts’s mouthing of the Rove line in 2003:

“As a nominee to an Appellate Court position, of course he would have to say that! Appellate courts do not make precedents, they have to follow them. This should in no way be construed as a personal view.  Hopefully, the man has left no trail of his "personal" views.  If he left such a trail, and it's pro-life, his nomination will fail. The grassroots have to go all out in favor of him. Circulating stuff like this might suppress grassroots support and do harm to the cause of the nomination.”

Before dealing directly with this sophistic rationalization of a possible betrayal of conscience (if Judge Roberts, a Catholic, is indeed personally pro-life), it is necessary to review one or two examples of the nonsense about just “having” to say or do something publicly which is contrary to one’s privately held beliefs.

Take, for example, the case of the 1994 gubernatorial election in the State of New York.

Numerous Catholics in the State of New York, from a prominent moral theologian who works closely with the New York State Right to Life Committee (which admits that the law can permit the killing of the innocent preborn in cases where it is alleged that a mother’s life is “endangered” to a whole assortment of pro-life activists, especially those in the Conservative Party of the State of New York, said in 1994 that then State Senator George Pataki just had to say he was “pro-choice” if he wanted to defeat then Governor Mario Matthew Cuomo in that year’s general election. These activists discouraged people from voting for the gubernatorial nominee of the Right to Life Party of the State of New York, Robert Walsh, saying that it was more important to get rid of Cuomo than it was to “waste” a vote of conscience for a man who “had no chance to win.”

“Pataki doesn’t mean what he’s saying,” an activist with ties to the Archdiocese of New York told me at the time. “He really is pro-life.”

My response was as follows:

“There are two possibilities here: the first is that Pataki is lying about his support of ‘abortion rights’ in order to get elected. You want me, therefore, to enable a liar who is ashamed of giving voice to what you claim he believes personally. No sale.

“The second possibility is as follows: Pataki really is pro-death and he will use his governorship to advance the cause of abortion just as ardently as Mario Cuomo.”

That second possibility turned out, obviously, to have been the case all along. Pataki has championed baby-killing during his ten-plus years as Governor of the State of New York, denouncing then Presidential candidate Patrick Joseph Buchanan in 1996 as an extremist who was a threat to “women’s reproductive rights.” Pataki has also championed the cause of “domestic partnership rights” for those steeped in unrepentant acts of perversity in violation of the Sixth and Ninth Commandments. Those who apologized for his support of baby-killing in 1994 surrendered to the exigencies of short-term expediency rather than standing steadfast in support of the basic Catholic principle of integrity of life in all things at all times without exception.

There is particular irony in the case of the 1994 elections. The aforementioned candidate of the Right to Life Party, Robert Walsh, spoke in the Fall of 1996 in a graduate course on Political Parties that I was teaching at the C. W. Post Campus of Long Island University. He told the story of how then Governor Cuomo came rushing up to him before one of their televised debates two years before, telling him, “Bob, I’m pro-life! I have to say I’m pro-choice in order to get elected.”

The very sad part of this story is that Mario Cuomo probably is pro-life. When running in a Democratic Party primary for Lieutenant Governor of New York in 1974, Cuomo said in a debate held in Albany, New York, in August of that year that he would have voted against the bill permitting abortion in the first trimester had he been a member of the New York State Legislature in 1970. Three years later in a failed bid for the Mayoralty of the City of New York, though, having learned from his political mentor, then Governor Hugh L. Carey, Cuomo had adopted the “I’m personally opposed to abortion” line that he continues to justify in public discourse.

The Karl Rove variation of “I’m personally opposed to abortion” (“Roe v. Wade is the settled law of the land”) emerged during the Ashcroft confirmation hearings four and one-half years ago, as noted before. Jersey City, New Jersey, Mayor Brent Schundler used that line when asked about abortion in his failed bid for Governor of the State of New Jersey against pro-abortion Catholic James McGreevey (who won handily but who had to resign in 2004 as a result of an impending Federal investigation of his chief fund-raiser and his admission that he was a practitioner of perverted acts against the Sixth and Ninth Commandments). Once again, various conservative activists and commentators, including Sean Hannity, fell into line, saying, “Well, Schundler’s right. Roe v. Wade is the settled law of the land. There’s nothing he can do about it.” And that Karl Rove brainchild has been used ever since, usually unsuccessfully, in the campaigns of Republican candidates in Congressional districts and/or states where being avowedly pro-life is considered to be a political liability. (The decision to use the line is made after considerable polling and focus-group testing. How will the pro-life electoral base react to such a line? Will pro-life activists help to enable such double-speak? What percentage of the undecided vote would be influenced positively by the use of such a line?)

Although current Attorney General (and possible future Supreme Court nominee) Alberto Gonzales wrote as Chief Justice of the Texas Supreme Court a decision that nullified a mere parental notification law that had been enacted by the Texas State Legislature and signed into law by then Governor George W. Bush, he left no doubt as to his own position concerning Roe v. Wade during his own Senate confirmation hearings six months ago, repeating the now-familiar refrain of it being “the settled law of the land” and that he would “enforce” the law.

No holder of the public weal, whether he be elected popularly or appointed to serve on the bench, is free to make statements that give the appearance that unjust and immoral actions of any branch of a government represent “settled law” that they must enforce and apply. This is indeed nothing other than a self-serving justification made in the interests of expediency. And if one wants to talk about Suarezian mental reservations in any case, including that of Judge John Roberts, then you must also be consistent and accept the explanations offered by that famous graduate of Georgetown University who remains a past master of the carefully crafted phrase and the mental reservation, William Jefferson Blyth Clinton. His apologists justified all of his self-serving rationalizations and prevarications repeatedly.

Alas, once again, we are faced with the all-too-logical consequences of an entire governmental system founded on the rejection of the necessity of belief in the entirety of the Deposit of Faith entrusted by the God-Man Himself, Our Lord and Saviour Jesus Christ, as the foundation of all personal and social order. It is a relatively easy thing for men to begin to think and to act solely in earthbound, secular terms once they accept the Protestant and Masonic notion that the State must be indifferent to specific doctrinal claims while they pursue the “common good” as best they can in spite of religious and “philosophical” differences. This is a lie. This is the lie of Modernity. This is the lie of the Modern State, founded in a specific and categorical rejection of the necessity of belief in the Incarnation of the Second Person of the Blessed Trinity in Our Lady’s virginal and immaculate womb as the focal point for all personal and social actions, rooted as they must be in an acceptance to everything contained in the Deposit Faith and the authority of the true Church to interpose herself directly in public discourse to correct actions that are contrary to God’s laws and thus put into jeopardy the sanctification and salvation of the souls entrusted to her pastoral care unto eternity.

No one, including a nominee for a judicial position, is permitted to make it appear as though he has no obligation imposed by God Himself to oppose unjust laws and edicts, no matter what it costs him in this mortal life. Our Lord did say, after all, “What does it profit a man to gain the whole world and suffer the loss of his soul?”

Pope Leo XIII put it this way in his 1885 encyclical letter, Immortale Dei:

“Further, it is unlawful to follow one line of conduct in private life and another in public, respecting privately the authority of the Church, but publicly rejecting it; for this would amount to joining together good and evil, and to putting man in conflict with himself; whereas he ought always to be consistent, and never in the least point nor in any condition of life to swerve from Christian virtue.”

Pope Leo XIII elaborated on this point five years later, stressing the necessity of Catholics as citizens to oppose unjust laws, doing so explicitly as Catholics by relying upon Catholic doctrine:

“But, if the laws of the State are manifestly at variance with the divine law, containing enactments hurtful to the Church, or conveying injunctions adverse to the duties imposed by religion, or if they violate in the person of the supreme Pontiff the authority of Jesus Christ, then, truly, to resist becomes a positive duty, to obey, a crime; a crime, moreover, combined with misdemeanor against the State itself, inasmuch as every offense leveled against religion is also a sin against the State. Here anew it becomes evident how unjust is the reproach of sedition; for the obedience due to rulers and legislators is not refused, but there is a deviation from their will in those precepts only which they have no power to enjoin. Commands that are issued adversely to the honor due to God, and hence are beyond the scope of justice, must be looked upon as anything rather than laws. You are fully aware, venerable brothers, that this is the very contention of the Apostle St. Paul, who, in writing to Titus, after reminding Christians that they are "to be subject to princes and powers, and to obey at a word," at once adds: "And to be ready to every good work."[7] Thereby he openly declares that, if laws of men contain injunctions contrary to the eternal law of God, it is right not to obey them. In like manner, the Prince of the Apostles gave this courageous and sublime answer to those who would have deprived him of the liberty of preaching the Gospel: "If it be just in the sight of God to hear you rather than God, judge ye, for we cannot but speak the things which we have seen and heard."[8] . . . .  But in this same matter, touching Christian faith, there are other duties whose exact and religious observance, necessary at all times in the interests of eternal salvation, become more especially so in these our days. Amid such reckless and widespread folly of opinion, it is, as We have said, the office of the Church to undertake the defense of truth and uproot errors from the mind, and this charge has to be at all times sacredly observed by her, seeing that the honor of God and the salvation of men are confided to her keeping. But, when necessity compels, not those only who are invested with power of rule are bound to safeguard the integrity of faith, but, as St. Thomas maintains: "Each one is under obligation to show forth his faith, either to instruct and encourage others of the faithful, or to repel the attacks of unbelievers.''[12] To recoil before an enemy, or to keep silence when from all sides such clamors are raised against truth, is the part of a man either devoid of character or who entertains doubt as to the truth of what he professes to believe. In both cases such mode of behaving is base and is insulting to God, and both are incompatible with the salvation of mankind. This kind of conduct is profitable only to the enemies of the faith, for nothing emboldens the wicked so greatly as the lack of courage on the part of the good. Moreover, want of vigor on the part of Christians is so much the more blameworthy, as not seldom little would be needed on their part to bring to naught false charges and refute erroneous opinions, and by always exerting themselves more strenuously they might reckon upon being successful. After all, no one can be prevented from putting forth that strength of soul which is the characteristic of true Christians, and very frequently by such display of courage our enemies lose heart and their designs are thwarted. Christians are, moreover, born for combat, whereof the greater the vehemence, the more assured, God aiding, the triumph: "Have confidence; I have overcome the world."[13] Nor is there any ground for alleging that Jesus Christ, the Guardian and Champion of the Church, needs not in any manner the help of men. Power certainly is not wanting to Him, but in His loving kindness He would assign to us a share in obtaining and applying the fruits of salvation procured through His grace.

“The chief elements of this duty consist in professing openly and unflinchingly the Catholic doctrine, and in propagating it to the utmost of our power. For, as is often said, with the greatest truth, there is nothing so hurtful to Christian wisdom as that it should not be known, since it possesses, when loyally received, inherent power to drive away error. So soon as Catholic truth is apprehended by a simple and unprejudiced soul, reason yields assent.”

The martyrs spoke before kings and governors as Catholics. So must we. At all times and in all places. The blood of the martyrs is the seed of the Church. Those who are rejected for public office, whether elected or appointed, because of their firm statement of adherence to Catholic truths  can do more good by their fidelity to those truths than they ever could by shading the truth and securing a measure of civil power. The merit of the witness we give to the fullness of the Deposit of Faith can, when offered freely to Our Lady’s Sorrowful and Immaculate Heart as her consecrated slaves, produce more abundant fruit in the souls of men and in the lives of entire nations than can be produced by compromising one iota of the truth for earthly gain.

To wit, let us say for the sake of argumentation that Judge John Roberts is truly pro-life and that he would indeed vote to reverse Roe v. Wade despite his having stated that the decision in that case is the “settled law of the land.” A mere reversal of Roe that does not state clearly that no government at any level (be it state or national) has any authority to dispense with innocent human life from the first moment of fertilization to that of natural death willed by God Himself would throw the matter back to the states themselves, which have no more authority to dispense with innocent life than does the Supreme Court of the United States. The defenders of “states’ rights” would hail such a decision as a triumph for their cause. Those of us who are concerned about Our Lord’s rights to be recognized confessionally as the King of our nation would point out yet once again the futility of laws and decisions based upon the flawed premise than man can achieve true social order without Christ and His Holy Church. We must care not about states’ rights but about the rights of Christ the King as He has revealed Himself through His true Church. Period.

If Judge John Roberts is indeed completely and unequivocally pro-life then he is duty bound to state this frankly and to let Our Lady use his fidelity to her Divine Son’s sacred truths as she sees fit. If he is confirmed, all well and good. If not, his witness to the truth will be used in ways that he may never understand until eternity.

If Judge John Roberts, though, takes the position that the binding precepts of the Divine positive law and the natural law have no role to play in the interpretation and application of human positive law, then he is unworthy of holding any judicial position no matter how seriously he might take the Faith in his own private life. He has an obligation, as Pope Leo XIII noted in Immortale Dei, to take the same line publicly as he does privately. Oh, this is not the advice he will receive from many conservative Catholics, eager to see another one from their own inner circle advance to the Supreme Court of the United States. It is, though, in consonance with the traditional, perennial teaching of the Catholic Church concerning the subordination of civil laws to the binding precepts of the Divine positive law and the natural law.

We must not be involved in needless “grassroots” support for judicial nominees who are unwilling to state that law settled wrongly must be unsettled. We must be on our knees beseeching Heaven that Pope Benedict XVI will consecrate Russia to Our Lady’s Sorrowful and Immaculate Heart with all of the world’s bishops, thus ending the spread of the errors of Russia, which are nothing other than the errors of Modernity in the world and Modernism in the Church. There will be no more talk of mental reservations and political expediency, only a consistent integrity of life represented by the ultimate fruit of the Triumph of the Immaculate Heart of Mary: the restoration of the Social Reign of Christ the King and the flowering of Christendom anew.


Viva Cristo Rey!

Our Lady of Guadalupe, Patroness of the Americas, pray for us.

Blessed Miguel Augustin Pro, shot by the Masonic revolutionaries in Mexico in 1927, pray for us.

The North American Martyrs, who shed their blood to Catholicize this land, pray for us.