The National Catholic Review
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My desire to offer some post-election commentary has been thwarted by bad timing. My submission deadline falls just before the Nov. 2 voting. Possessing neither crystal ball nor much confidence in pre-election polling data, I will have to settle for something other than detailed analysis of the mid-term election results. I will take the long view regarding a perennial concern within U.S. politics.

One of the most closely watched Senate races this season unfolded in Delaware. The Democrats nominated New Castle County Executive Chris Coons (full disclosure: I was once on a college debating team with him). His Republican opponent was the Tea Party-supported consultant Christine O’Donnell. Luckily, the campaign soon moved on past O’Donnell’s dabbling in witchcraft to more substantial topics.

For those outside Delaware, the primary opportunity to assess the candidates was the CNN broadcast of a debate on Oct. 13 (interrupted, to the dismay of few, by breaking news of the rescue of 33 Chilean miners).

As surely as Nascar enthusiasts secretly yearn for multi-car pileups, people watch candidates’ debates to gawk at gaffes. After this debate the moderator, Wolf Blitzer, opined that O’Donnell must be judged the winner simply because she made no major missteps, a solid accomplishment for a less experienced candidate like her.

I strongly disagree with Blitzer’s assessment. The candidate in fact made an egregious gaffe. When asked to name a recent Supreme Court decision with which she disagreed, O’Donnell inexplicably drew a complete blank. Obviously flustered, she promised to post on her Web site right away her answer to that question.

Now we all live in dread of being flummoxed by “gotcha” questions like this. I have been there myself, unable to recall a single title of a favorite novel when a live radio interviewer was making small talk with me on air some years ago. I even tell my students facing job interviews to keep on the tip of the tongue answers to casual questions like “Who is your favorite theologian?” or “What is the best Catholic weekly magazine in the United States?”

By the time you read this, Christine O’Donnell is either a Senator-elect or is looking for work. I nevertheless wish to offer her some advice on this aspect of campaign debate preparation.

If you favor a broad interpretation of the word recent, then consider citing Plessy v. Ferguson, the 1896 case that cemented the principle of “separate but equal” into U.S. law for generations. Or go with Roe v. Wade, the horrific 1973 decision that allowed legal abortion in all states. O’Donnell’s public record attests to her opposition to that Supreme Court blunder.

If the word recent means only this year, there are still many decisions from which to choose. I would identify two that are particularly objectionable. In January the court reached a much criticized decision in the case Citizens United v. Federal Election Commission, which overturned many previous restraints on political advertisements. This raises fears that corporations and special-interest groups can bankroll a range of political activities with little regulation or transparency. Foreign donors seeking to influence American politics are freer than ever to engage in stealth spending.

The other disastrous ruling was in the case Holder v. Humanitarian Law Project. That decision, on June 21, defined all contact with any of the hundreds of groups classified by the State Department as terrorist organizations as constituting material support for enemies of the United States. Main-taining such a broad interpretation of material support precludes constructive initiatives like the creative Track II diplomacy, which has led to peace settlements in Northern Ireland and elsewhere.

While both decisions cite lofty principles (free speech, national security), I predict that the effects of these two rulings will be intolerable. While people of good will might well disagree, I am convinced that each will seriously damage the common good.

Supreme Court decisions have a way of trumping electoral politics and reshaping the structure of the entire political system. A bad ruling may tilt the playing field in ways antithetical to democracy. Every candidate should be poised to identify and oppose decisions with harmful effects that will last long beyond a given election cycle.

Thomas Massaro, S.J., teaches social ethics at the Boston College School of Theology and Ministry, Chestnut Hill, Mass.

Comments

Ana Blasucci | 11/21/2010 - 6:22pm
Nobody could argue with Fr. Massaro's assertion that the Supreme Court has a way of trumping electoral politics, and often (whichever side of the lib-conservative line one is on) for the worse.
Some experts assert that the High Court does not actually have the powers it claims, but as long as we are going to play like it does, regarding outcomes, here's the thing... the Court's purpose is to determine whether a particular law or policy is allowed under the Federal Constitution, or to be the arbiter of last resort in a civil case according to existing constitutional laws.
The courts, Supreme included, are ideally blind to outcome.  To be otherwise is to be activist, the greatest evil any court can take on over the long run.
Activism is a condition of judicial conduct properly despised by those on both sides of the aforementioned political line. 
Certainly judges and justices, if called on, might overturn precedent if now determined to be un-Constitutional or not the "most legal" expression of a situation possible.  But only on those grounds.  The Supreme (and any) Court properly recognizes no "preferential options."  The justices can issue apocryphal counsels against a law or policy, but they might still have to uphold it.
Activism, intuitively, will lead to the greater number of the worst decisions over time, since they would essentially be expressions of the personal whims of a few black-robed folks, who would jam the square legal peg into the round Constitutional hole, invalidly, time and again.
Better if a law turns out badly that we get engaged, as in this previous election cycle, and rely on the imperfect electoral process to change law, remaining on the firmest Constitutional footing possible to survive the courts.  We should more properly pray for wisdom for our elected representatives, and
Ana Blasucci | 11/21/2010 - 6:22pm
Nobody could argue with Fr. Massaro's assertion that the Supreme Court has a way of trumping electoral politics, and often (whichever side of the lib-conservative line one is on) for the worse.
Some experts assert that the High Court does not actually have the powers it claims, but as long as we are going to play like it does, regarding outcomes, here's the thing... the Court's purpose is to determine whether a particular law or policy is allowed under the Federal Constitution, or to be the arbiter of last resort in a civil case according to existing constitutional laws.
The courts, Supreme included, are ideally blind to outcome.  To be otherwise is to be activist, the greatest evil any court can take on over the long run.
Activism is a condition of judicial conduct properly despised by those on both sides of the aforementioned political line. 
Certainly judges and justices, if called on, might overturn precedent if now determined to be un-Constitutional or not the "most legal" expression of a situation possible.  But only on those grounds.  The Supreme (and any) Court properly recognizes no "preferential options."  The justices can issue apocryphal counsels against a law or policy, but they might still have to uphold it.
Activism, intuitively, will lead to the greater number of the worst decisions over time, since they would essentially be expressions of the personal whims of a few black-robed folks, who would jam the square legal peg into the round Constitutional hole, invalidly, time and again.
Better if a law turns out badly that we get engaged, as in this previous election cycle, and rely on the imperfect electoral process to change law, remaining on the firmest Constitutional footing possible to survive the courts.  We should more properly pray for wisdom for our elected representatives, and
Tom Maher | 11/7/2010 - 12:33am
Christine O'Donnell was very wise to effectively not answer the question on what recent Supreme Court decision she disagreed with.   Basic debate and political instinct  dictates that the candidate not passively accept premises, conditions or questions that may divert or detract from the critical political messages she must make to advance her candidacy.  The question was a special question of one person meant to find out more about the candidate as a person.  O'Donnell reply to find it on the web site is the correct response to this exotic question of one indivdual.  Few people would care about or postitvely repond to the annswer to this question.   The question is just too far from the issues of the campaign.  Any reply would likely be unfavorably reponeded and a diversion from the real issues.  reason. 

O'Donnell had learned from her past mistake of taking everything seriously such as the outlandish question of whether she was a witch or whatever.  Unfortunately her public statement "I am not a witch" was a self-inflicted injury that she did not recover from.  But at least she did not make another error in jugdement by volunteering too much  unimportant infromation. 

It is the author's mistake to beleive O'Donnell could fnot answer the question or must answer the question. O'Donnell was very strong on issues and had very great detail on issues.  She should have stuck to th eissues whcih she is quite good at. 

saster that scost her the election. he could not afford to repeat and withc pmistaedeal with the  was she a  swer Onone else cares about the ques  as a person biographically  as a person look it up on the web site is a very good answer.  l  It is a clear mistake even on job interviews to be too much of a good girl.  Like nice guys nice girls finish last.   Pollitical debate especially for women is a very earnest enterprise where ones self interest and self preservation must be foremost concern and focus of the cnadiddate merely for the cadidate to remain viable.   Who can forget the presidential candiMichael Dukuksis ckacksurvise as ervive.  Does anyone doubt that MS. O'The debate is most serious business and therefore not frivilous questions by every  joker that comes along should be honored.  everThis is.  snt. points she mustcpoinhts issues she wanted to present points she wants to make create a favorably conditons rnises or conditon influence or control the terms of the debate by not mention or answering any extraneous issues or questions.  Nothing is gained by comnpusulory  .  Mike Du that are not of great concern to most voters.  This is not a academic exercise or job interview where the candidate hereself nadidate is the sole issue s people in the audience. question possed.   probing question that would take a candidate and contrnet by not dignifying avoiding going down every rabbit hole and back alley question ppos what enremains speaker at cede control of the issues you do not get stampeded by self-contgrol.  She is not a gawkt c that not every question gets an answer but especially questions  even high school kids now O'Donnell does not need to concludemonstrate her knowledge Any answer would The question would Any answer would diferet attention away likely The qu
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HARRY REYNOLDS | 11/6/2010 - 12:00am
Alright, Father Massaro, spontaneously, without undue reflection, and with the knowledge that God is watching,  state the title of a favorite novel that you have read in the past tenyears.
Patrick Korten | 11/5/2010 - 1:28pm

My suggestion for an objectionable recent case would be Kelo v. City of New London, the Supreme Court's gift to social engineers everywhere.  Kelo rendered the Fifth Amendment protection against unjustified governmental seizure of property practically meaningless.  After Kelo, the power of eminent domain is virtually without check.

In the 1950s and 60s, social engineers used the condemnation power of the government to bulldoze thousands of poor but functional neighborhoods in order to erect low income housing projects that quickly became a no-man's land of crime, drug abuse, and fear.  The epitome of this approach to "urban renewal," Chicago's Cabrini-Green project, has now been largely torn down, and the city continues to struggle to make the area livable.

In Kelo, the principle was stretched from restoring "blighted" areas to allowing property seizure in the name of "economic development," in this case a development in which a large pharmaceutical company promised to anchor a redevelopment area in which Susette Kelo's home was located.  It was a classic inversion of Robin Hood: New London took from the poor to give to the rich.  The NAACP, the SCLC and the AARP all opposed the taking, but for naught.  The Supreme Court held 5-4 that it was constitutional.

A few years later, Pfizer pulled out of the redevelopment scheme, the whole plan collapsed, and the land on which the Kelo home once stood lies vacant.  A fitting testament to the law of unintended consequences, which social engineers seem incapable of understanding.

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