Antonin Scalia, in a recent speech at Villanova, made the perhaps surprising claim that there's no such thing as a "Catholic judge." Robert Miller at First Things agrees with him, and so do I. In fact, I would argue that there's no such thing as a Christian judge, or at least there shouldn't be.
It is the judge's duty to interpret the law. There is no Catholic or Christian interpretation of the law any more than there is a Christian interpretation of French. The law says what it says regardless of what we'd like it to say, and it is the judge's obligation to rule on what it says. It is the legislator's job to write the law and certainly one can be a Christian legislator, but their's is a duty toward the law much different than the duty of interpreting it.
Miller quotes Rick Garnett toward the end of his essay who:
agrees with Scalia's main point but thinks that he is still a "Catholic judge" whether he likes it or not. Garnett writes: "To be a Catholic judge . . . is to be a judge in the way a Catholic, like everyone else, should be a judge: To take seriously one's obligation to decide impartially, to submit to the rule of law, rather than one's own preferences, and to have an appropriate humility about the task one is charged to perform. Obviously, this is not a distinctively Catholic way of judging, . . . but it is, I think, the way a Catholic should judge. It's also the way Justice Scalia thinks he should judge and, I'm confident, he thinks this way (at least in part) because he is a Catholic."
As Miller points out, however, "a Catholic judge is not merely a Catholic who is a judge but someone who judges in a way different from other judges precisely because he is Catholic - and this is exactly what Scalia denies he does." Scalia, in other words, believes it is emphatically not his duty to make law but to interpret it. Would that all judges believed the same.
RLC
