Mario Cuomo needs a civics lesson

Like a lot of people, Mario Cuomo seems not to understand the difference between the legislative and the judiciary branches of the government.

In a column for the LA Times about the prospective religious test for Judge Roberts, he writes:

For more than 20 years, some conservative clerics and politicians have bitterly criticized Catholic public officials for refusing to use their office to "correct" the law of the land. They demand that Catholic officials make political decisions reflecting their religious belief that abortion is tantamount to murder and work to overturn Roe vs. Wade and other laws that make abortion legal.

"Public officials" is a broad word -- it includes the president, state legislators, U.S. Senators, municipal judges and state superintendent of highways.

A quick review for Cuomo: the legislative branch makes the laws; the executive branch enforces the laws; and the judicial branch interprets the laws. It causes no end of confusion when "public officials" forget what they are supposed to be doing. It also makes a world of difference to the relationship between religion and which branch the public official works under.

For example, when, as Cuomo asserts, "most of the targeted officials have been Democrats such as Ted Kennedy, Gerry Ferraro and John Kerry," he is talking about two senators and a congresswoman. It's the job of the legislative branch to make and repeal laws and even to change the Constitution if they want to and can, and their constituents may rightly complain if legislators campaign on religious affiliations and then betray those affiliations in their legislating.

But Cuomo goes on:

But now that Judge John G. Roberts Jr. -- their candidate -- has been nominated for the U.S. Supreme Court, the shoe is on the other political foot. Conservatives are outraged that another Catholic public official might be considered deserving of the same criticism. They demand that Roberts not be asked about personal beliefs, including religious ones, because it would amount to a "religious test" prohibited by the Constitution.

Cuomo's use of the word "candidate" is misleading, though not incorrect, because, according to the spirit of the Constitution, people don't "run" for the Supreme Court. It's not a "political" office, although the judicial branch has taken to writing law over the past few decades. But according to the Constitution, what the judge does is to interpret the law, not to create laws or even to find them lurking in the emanations of the penumbra of the Constitution.

I think I'm fairly safe in saying that there's nothing in the text of the Constitution itself, as amended, that goes against the teachings of the Catholic Church. What the pro-abortion crowd, such as Cuomo, Kennedy, Kerry and Ferraro -- and that's what this is all about -- are concerned with is not whether a given Catholic justice will uphold the Constitution, but whether the justice will uphold prior Courts' legislative forays, such as Roe v. Wade.

Since the Catholic Church has recently become more uncomfortable with the death penalty, it might be a crisis of conscience for a Catholic Justice to rule that there is nothing in the U.S. Constitution banning the death penalty, but even there, it is simply a question of fact: the U.S. Constitution does not ban the death penalty. What a state does with that piece of information is not the responsibility of the Justices.

It's only when judges usurp the work of the other branches that religion becomes relevant. Judicial philosophy, respect for the words and ideas of the people who wrote the founding documents and for the people who are named in the preamble as the ultimate earthly authority, and judicial temperament (which I think is the ability to detach from the emotional and power-driven aspects of the case and look at the issues in light of the Constitution) are relevant. All the Democratic Senators want to know is how Roberts is going to legislate -- that is, whether he will build on the past legislation of Roe..

If Roberts is the Justice I hope he is, it's a meaningless question. But I also hope he has enough respect for the Constitution that he will be part of a future majority recognizing that Roe is a destructive aberration.

Then let the legislators, Catholic and otherwise, deal with the abortion question and face the wrath of the people -- their employers -- if they get it wrong.