Judicial Background and Blindness

My good friend Jake, in response to my earlier post on the nomination of Judge Sotomayor to the Supreme Court, wrote an insightful comment, arguing that there can be no “objective” interpretation of the law (or any other text, for that matter), so it isn’t really fair to suggest that Judge Sotomayor’s self-admitted Latina proclivities should preclude her from serving. He also suggested reading this column on CNN’s website about the issue.

As I mentioned in my response, I agree with him about the impossibility of interpreting anything “objectively.” Where I disagree is when “empathy,” race, gender, or any other influence becomes an approved lens through which to examine the law.

Consider this quotation from the above-cited CNN article:

For conservative purists, empathy is all about feelings, which have no place in the law. It’s also about experiences — even ethnicity — which should also have no place in the law.

As a defiant Justice Antonin Scalia said in 2007, “Just as there is no ‘Catholic’ way to cook a hamburger, I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.” And I’m sure he’s telling the truth.

But there’s more to it than that. “If empathy means you understand what other people are thinking,” says one senior White House adviser, “… you would think you would want a judge with empathy.” That’s also true.

My problem is not about the existence of feelings, experiences, or even ethnicity, because to deny that anyone can live without such things is a lie perpetuated by the Enlightenment. My problem is illustrated by the statement of the senior White House adviser who believes that “you would think you would want a judge [who understands what other people are thinking].” In my opinion, that is decidedly false.

The role of the judiciary is to ask, “Does the law address this situation? If so, how? To what extent? What aspects does the law not address?” Notice that these are law-centered questions, not “what other people are thinking” questions. When someone touts their ability to understand how other people are feeling, rather than their ability to understand what the law does and doesn’t say, I would label that person a judicial activist, and I do not think that such a person should be given a lifetime appointment to the Supreme Court.

As a case study, let me quote again from the CNN article:

Just ask conservative Justice Samuel Alito. When testifying at his own confirmation hearings, he was all about empathy. “When a case comes before me involving, let’s say, someone who is an immigrant … I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.” Conservatives found no objection when Alito described his own brand of empathy.

I may be going out on a limb here, but I do not think that Alito believes that he can rule on the basis of his empathy for immigrants. Certainly he might empathize with them, and he might deal gently with them during the proceedings on that basis; however, he would be an unlawful judicial activist if his reasoning ever amounted to, “Well, there isn’t anything in the law that can help you, but I feel sorry for you, so I’m going to give you a beneficial ruling.”

If he felt that way, he should have run for Congress, not for appointment to the Supreme Court. I would not have similar reservations about empathy on the Supreme Court, because that is where policy is supposed to be made, and I don’t see any limit on the kind of motivations that may influence congressional policy aside from the Constitution.

Empathy is not wrong in itself, but it is the wrong lens to use to interpret the law. Members of the Judiciary branch should strive (even if, as fallen and limited humans, they cannot completely succeed) to leave empathy, race, gender, or any other influences behind in coming to legal decisions, regardless of where such disregard of their own feelings might lead them.

Alcohol and Isaiah

My Bible reading plan takes me through the book of Isaiah at the beginning of every summer, and one of the things that I have newly appreciated this time around is Isaiah’s versatile use of wine imagery. Isaiah uses wine in at least three major ways, as far as I can tell.

First, Isaiah uses wine as an image of sinful vanity: “Woe to those who rise early in the morning, that they may run after strong drink, who tarry late into the evening as wine inflames them!” (Isa. 5:11). These are the people who live their lives for nothing but pleasure, and Isaiah condemns them as such.

Second, Isaiah pairs the image of wine with the image of drunkenness to suggest YHWH’s judgment, specifically in chapter 28. “Ah, the proud crown of the drunkards of Ephraim, and the fading flower of its glorious beauty, which is on the head of the rich valley of those overcome with wine!…The proud crown of the drunkards of Ephraim will be trodden underfoot” (Isa. 28:1, 3). Isaiah insists that these drunkards will face their due punishment.

YHWH will even judge the drunken priests and prophets who have perverted his worship: “These also reel with wine and stagger with strong drink; the priest and the prophet reel with strong drink, they are swallowed by wine, they stagger with strong drink, they reel in vision, they stumble in giving judgment. For all tables are full of filthy vomit, with no space left” (Isa. 28:7-8). Staggering, reeling, stumbling, and vomiting: notice carefully that this drunkenness does not lead to some kind of judgment unrelated to the crime, but that the drunkenness is itself YHWH’s judgment on their misuse of wine.

I think, however, that the militant teetotalers focus too much on these first two images because they miss the glory of the third image of wine, which is as a symbol of joy. Isaiah begins his book by lamenting all that has gone wrong in Jerusalem, and he does so in part by describing their joy as watered-down (that is, bland, weak, disgusting) wine: “How the faithful city has become a whore…Your silver has become dross, your best wine mixed with water” (Isa. 1:21-22). If they had only obeyed YHWH, Isaiah suggests, they would have enjoyed unmixed, pure, joyous wine–the kind of wine that Jesus served to those at the wedding at Cana.

Even so, YHWH promises that, one day, “On this mountain YHWH of hosts will make for all peoples a feast of rich food, a feast of well-aged wine, of rich food full of marrow, of aged wine well refined” (Isa. 25:6). YHWH will one day restore the rich, well-aged wine that Jerusalem forfeited, and he will include “all peoples,” in that feast–not just the people of Israel and Judah.

On this point, I cannot help but think of the richest wine that Christ freely offers us in his cup, and the fact that our sinful natures would often rather follow the Corinthian church into drunkenness. Our wandering-prone hearts are too eager to trade rich, life-giving, joyous wine of Christ’s New Covenant for the weak, watered-down wine that the world offers.

Also, Derek Webb’s verse in Lover becomes all the more profound:

Because I am my Beloved’s, and my Beloved’s mine.
So you bring all your history, and I’ll bring the bread and wine.
And we’ll have us a party, where all the drinks are on me.
And as surely as the rising sun, oh you will be set free.
Oh! you will be set free!

Seriously?

Couple: County Trying To Stop Home Bible Studies:

Broyles said, “The county asked, ‘Do you have a regular meeting in your home?’ She said, ‘Yes.’ ‘Do you say amen?’ ‘Yes.’ ‘Do you pray?’ ‘Yes.’ ‘Do you say praise the Lord?’ ‘Yes.’”

The county employee notified the couple that the small Bible study, with an average of 15 people attending, was in violation of County regulations, according to Broyles.

Broyles said a few days later the couple received a written warning that listed “unlawful use of land” and told them to “stop religious assembly or apply for a major use permit” — a process that could cost tens of thousands of dollars.

Read the article here.

Ben Nelson and Judge Sotomayor

Nebraska Senator Ben Nelson will be faced with a difficult position in the upcoming confirmation of Sonia Sotomayor. On the one hand, he is a Democrat, the same party as the president who nominated Judge Sotomayor. On the other hand, he campaigned and was elected in Nebraska on the basis that he was a conservative Democrat. At the time, the Republicans ruled both houses of Congress, so Senator Nelson argued that, if elected, he would occupy a unique position in the Senate as a dissenting party member from the majority Republicans, but a dissenting conservative voice to his Democrat party.

Now that the party makeup of Congress has completely reversed itself, I strongly think that Nebraskans need to call on Senator Nelson to be a conservative voice within his party, and especially that he should vote against confirming Judge Sotomayor to the Supreme Court.

I have nothing personal against Judge Sotomayor, and I do hope that the confirmation hearings will rise above the rancorous partisanship that all too often defines these events. Still, I do not think that she is fit to serve as a justice on the Supreme Court. My reasons for believing this are not original, but I think that I should state them.

First, Judge Sotomayor has made it clear that she believes that the Judicial Branch of the Federal Government is indeed where “policy is made” (watch a video of her statement here). Yes, she quickly admits that she shouldn’t say such things, but it seems very clear to me that she actually believes it, even though she isn’t supposed to (*wink, wink, nudge nudge*). In my opinion, this alone disqualifies her from serving as a justice on the Supreme Court: she believes that her job would and should go beyond the Constitutional job description.

The second problem I have with Judge Sotomayor is with her comment that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” as quoted in the New York Times. At best, this statement is simply nonsensical–race, gender, age, religion, etc…, should make no difference in interpreting the law. This, of course, presumes that the judge is only interested in interpreting the law. Only someone interested in drafting policy could make a statement about who is most qualified to “reach a better conclusion.”

At worse, however, this statement is racist. It would be one thing to say that the experiences of a Latina woman would give a “different” or a “complementary” conclusion, but to say that her experiences would help her to reach a “better” conclusion is an insult.

Finally, the Washington Times reports that the written opinions of Judge Sotomayor have been reversed 60% of the time. Either this means that her opinions are correct only 40% of the time, or it means that President Obama wants to make a major ideological change on the Supreme Court so that those opinions that were reversed 60% of the time would have no higher Court to reverse them. Possibly, both of these statements are true.

All of this suggests that President Obama has nominated a highly ideological candidate who is committed to a certain change in the course of United States policy, rather than a candidate who would simply interpret the law. For this reason, Judge Sotomayor is not the right person to sit on the Supreme Court in Justice Souter’s seat, and the Senate should not confirm her nomination.

I would encourage any of you who are Nebraskans to contact Senator Mike Johanns to urge him to vote against confirming Judge Sotomayor, but especially that you would contact Senator Ben Nelson, whose vote as a conservative Democrat will be crucial in the confirmation process.

Numbers, Nearness, and Holiness

Biblically speaking, humanity’s nearness to God is more complicated than we often imagine. For example, the hymn “Nearer My God to Thee” would suggest that closeness to God is always a good thing, but this simply is not the case. Rather, the Bible treats nearness to God as a privilege, but also as a responsibility. Put simply, God demands holiness from those whom he draws near to himself.

In the book of Numbers, this theme arises largely in connection with the non-priestly Levites (another post for another day), but I noticed another passage today related to it: “You shall not defile the land in which you live, in the midst of which I dwell, for I the LORD dwell in the midst of the people of Israel” (Num 35:34). The context here is murder, manslaughter, and the cities of refuge, but the point is that YHWH did not want the Israelites defiling the land because to do so would defile YHWH’s own holiness.

In the New Covenant, however, YHWH dwells with his people even more closely–the new temple is the Body of Christ (see John 2:18-22), which is ultimately the Church (see Eph. 2:17-22). There are two major implications in this:

1. So close to YHWH, we should be struck down for our failure to be holy, just as Nadab and Abihu were struck down (“This is what YHWH has said, ‘Among those who are near me I will be sanctified, and before all the people I will be glorified’” Lev. 10:3). Our only hope is the imputed righteousness of Christ–that is, that we freely gain Christ’s righteousness and holiness as if it were our own.

   Do not miss, however, that we gain this righteousness because we have been brought near to God by being united to Christ. As Calvin pointed out in his Institutes, “Therefore, that joining together of Head and members, that indwelling of Christ in our hearts—in short, that mystical union—are accorded by us the highest degree of importance, so that Christ, having been made ours, makes us sharers with him in the gifts with which he has been endowed….because we put on Christ and are engrafted into his body—in short, because he deigns to make us one with him” (3.11.10).

2. Even so, we are called to be progressively sanctified in our lives–to be brought into conformity with the image of Christ. So, we should not so much pray to be “Nearer My God to Thee” (since we are already raised up with Christ and seated with him in the heavenly places [Eph.2:4-6], and we already have confidence to enter into the holy places [Heb. 10:19-23]), but rather we should pray that we might be “Holier, My God for Thee.”

D. Martyn Lloyd-Jones and Revival

I have been reading the second volume of Iain Murray’s comprehensive biography on D. Martyn Lloyd-Jones, having read the first volume last year. It is a bit tedious at times, but only because Murray made the conscious choice to include more, rather than less, “in part because of the thought that writers on Dr Lloyd-Jones in future years will naturally find it harder to gather information from those who knew him” (xx). Nevertheless, the whole is a challenging, exciting account of one of the greatest British preachers of the 20th century, and I commend it to you wholeheartedly.

One of the most interesting emphases of the book of Lloyd-Jones’s burden to preach toward and pray for genuine revival in Britain. He was not interested in revivalism, which requires only the right manipulation of human elements, but in revival, which only God can grant. Quoting the book Revival, Murray gives us Lloyd-Jones’s own definition:

The essence of a revival is that the Holy Spirit comes down upon a number of people together, upon a whole church, upon a number of churches, districts, or perhaps a whole country. It is, if you like, a visitation of the Holy Spirit, or another term has often been used is this–an outpouring of the Holy Spirit…When God acts in revival everybody present feels and knows that God is there. Of course, we believe this. We believe this by faith. Yes, but we should know it. We should be conscious of His nearness. And that is what revival does for us. (p. 380-81)

I could say many things about this thought, but I will limit myself to only one point. Reading Kuyper has brought about an awakening of the belief that politics matter, and that Christians (especially Calvinistic Christians) should engage in politics with a view toward subduing the earth to the Lordship of Jesus Christ. Nevertheless, no amount of political (or scientific, or commercial, or familial etc…) change can transform this world, but only the Spirit of God, applying the righteousness of Jesus Christ to his people through faith.

The best work we Christians can do to improve America’s economy, or to defend ourselves from terrorism, or to end the holocaust of abortion in this country is to pray for true revival–that is, for a visitation from the Holy Spirit.

History’s Argument Against Keynesian Policies

Okay, it might not be fair to make such a definitive statement on the subject, but in response to a comment by my esteemed colleague, I wanted to post a brief response against the argument that government spending is good for turning around bad economies. Two UCLA economists argue that FDR’s policies actually prolonged the Great Depression by seven years. This was written in 2004, so I find this statement a little frightening, given current stimulus policies:

“Why the Great Depression lasted so long has always been a great mystery, and because we never really knew the reason, we have always worried whether we would have another 10- to 15-year economic slump,” said Ohanian, vice chair of UCLA’s Department of Economics. “We found that a relapse isn’t likely unless lawmakers gum up a recovery with ill-conceived stimulus policies.”

Read the whole story here.

Blessed Ascension Sunday!

Today is Ascension Sunday, and I was pleased that my church celebrated Christ’s Ascension and included a part of the Heidelberg Catechism on the subject:

Question 49. Of what advantage to us is Christ’s ascension into heaven?

Answer: First, that he is our advocate in the presence of his Father in heaven; secondly, that we have our flesh in heaven as a sure pledge that he, as the head, will also take up to himself, us, his members; thirdly, that he sends us his Spirit as an earnest, by whose power we “seek the things which are above, where Christ sitteth on the right hand of God, and not things on earth.”

We too seldom think on the benefits of Christ’s ascension, so it is good to celebrate them at least one Sunday out of the year. I am particularly interested in the second benefit listed here, because they are virtually quoting a passage from Calvin’s Institutes that I used in the paper I just wrote for my “Calvin and the Reformed Tradition” class:

From this [the Ascension] our faith receives many benefits. First it understands that the Lord by his ascent to heaven opened the way into the Heavenly Kingdom, which had been closed through Adam [John 14:3]. Since he entered heaven in our flesh, as if in our name, it follows, as the apostle says, that in a sense we already “sit with God in the heavenly places in him” [Eph. 2:6], so that we do not await heaven with a bare hope, but in our Head already possess it. (2.16.16)

Because part of Christ’s body is already in heaven, we have confidence that the rest of his body (that is, we who are members of his Church) will join him there.

Reagan vs. Kuyper vs. Obama

As some of you know, I went through a long phase where I was a huge fan of Ronald Reagan. I still am, to a large degree, but I no longer actively collect biographies written about him or things like that. In fact, the more I think about Reagan’s political philosophy, the more I agree with him in practice, but the less I agree with him on principle.

Reagan contended for the liberty of all people because he believed passionately in the wisdom of individual men and women to run their own lives, free of any government coercion. For a radio address given on December 22, 1976, for example, he wrote the following in praise of the high productivity of Americans:

All of this is because our system frees the individual genius of man. Released him to fly as high & as far as his own talent & energy would take him. We allocate resources not by govt. decision but by the mil’s. of decisions customers make when they go into the mkt. place to buy. If something seems too high priced we buy something else. Thus resources are steered toward those things the people want most at the price they are willing to pay. It may not be a perfect system but it’s better than any other that’s ever been tried. (Reagan: In His Own Hand, ed. Kron K. Skinner, Annelise Anderson, and Martin Anderson [New York: The Free Press, 2001], 13)

To this day, I find Reagan’s arguments for small government and free market capitalism persuasive, but I have realized a major flaw here: Reagan puts too much faith in the goodness and wisdom of individual men and women.

For this reason, I find the rationale of Abraham Kuyper (a 19th century Dutch Calvinist) much more persuasive. Kuyper argues for limited government control and for the freedom of the market on the basis of a distrust of people, not a trust in “the individual genius of man.” I just read his Lectures on Calvinism, and I found his overall perspective thrilling, especially his chapter on “Calvinism and Politics.”

Kuyper articulates a Calvinism that sees different “spheres of sovereignty” in life, where God has ordained different institutions to exercise dominion over the earth, per the creation mandate, and a just society would recognize all these different spheres.

So, for example, a family would have no authority over punishing criminals (which would be in the dominion of the State), but neither would the state have any authority in raising children (a function of the family). The point is that, while there is a very necessary and proper place for government (one which we may not as Christians ignore), the State is unjust if it goes beyond those bounds. In fact, Kuyper suggests that such a State would not only be unjust, but that it would be evil, lusting after power that God has not granted to it.

Kuyper names four spheres whose authority the government may not trespass: “1. In the social sphere, by personal superiority. 2. In the corporate sphere of universities, guilds, associations, etc. 3. In the domestic sphere of the family and of married life, and 4. In communal autonomy” (Abraham Kuyper, Lectures on Calvinism [Grand Rapids: Eerdmans, 1953], 96).

He writes:

Bound by its own mandate, therefore, the government may neither ignore nor modify nor disrupt the divine mandate under which these social spheres stand. The sovereignty, by the grace of God, of the government is here set aside and limited, for God’s sake, by another sovereignty, which is equally divine in origin. Neither the life of science nor of art, nor of agriculture, nor of industry, nor of commerce, nor of navigation, nor of the family, nor of human relationship may be coerced to suit itself to the grace of the government. The State may never become an octopus, which stifles the whole of life. It must occupy its own place, on its own root, among all the other trees of the forest, and thus it has to honor and maintain every form of life which grows independently in its own sacred autonomy. (Kuyper, Lectures, p. 96-97, emphasis added.)

All of this accomplishes three things:

1. It gives me a theological, rather than a self-centered, basis for conservative politics.
2. It makes me wonder whether I am justified in saying that the exponentially expanding role of the government under President Obama (although other Democrats and Republicans are highly complicit in this) is immoral and idolatrous, ignoring the proper sphere for which God ordained government. (I am about 85% comfortable with such a bold statement.)
3. It makes me want to join the Constitution Party.