The Catholic Intellectual Tradition: A Jurist’s Perspective Transcript

Joel Alicea (00:04):
Well welcome. We’ll begin as always in the name of the Father and of the Son and of the Holy Spirit. Amen. Hail Mary, full of grace. The Lord is with Thee. Blessed Art thou among women and blessed is the fruit of thy womb, Jesus. Holy Mary mother of God, pray for us sinners now and at the hour of our death, Amen. In the name of the Father and of the Son and of the Holy Spirit. Amen.

Well, thank you all for coming to this event on the Catholic intellectual tradition, a Jurist’s Perspective. I’m Joel Alicea. I am a professor here at the Catholic University of America’s Columbus School of Law and the co-director, along with Professor Kevin Walsh, of the project on constitutional originalism and the Catholic intellectual tradition or CIT. We’re delighted to have three very distinguished Jurists with us today for this discussion. I’m just going to introduce our moderator, Judge Duncan.

He will then introduce the other panelists and he will take it away from there. So Judge Kyle Duncan was appointed to the US Court of Appeals for the Fifth Circuit in May, 2018. Before his appointment, Judge Duncan practiced at the Washington DC firm of Schaerr Duncan LLP, where he was a founding partner. Previously he served as Appellate Chief for Louisiana’s Attorney General’s office as general counsel of the Beckett Fund for Religious Liberty and as Assistant Professor of Law at the University of Mississippi School of Law. Judge Duncan clerked for Judge John Malcolm Duhe Jr, on the Fifth Circuit.

He received his BA from Louisiana State University, his JD from the Paul H Herbert Law Center at Louisiana State University and his LLM from Columbia Law School. Of particular relevance to this event he is serving this year as a visiting Jurist for CIT, which means that as part of serving in that capacity, he moderates events like this for us. He’ll co-teach a few classes over the course of the year. He’s already done so I think with Professor Rienzi earlier this year and have dinners and conversations with faculty and students. We’re very grateful to Judge Duncan for doing that for us, serving in that role. And I’ll turn it over to Judge Duncan. Thank you.

Kyle Duncan (02:08):
Thank you Joel. It’s great to be here. It’s a real honor to be visiting here this year at this great law school. We are particularly blessed today to have two excellent judges to give us their perspective on the Catholic intellectual tradition and how it influences their approach to judging and I look forward to hearing their comments. To my left is Judge Sarah Pitlyk, who is a district judge for the Eastern District of Missouri. She was sworn in 2019. Judge Pitlyk graduated from Yale Law School. Her undergraduate degree is from Boston College. She has a master’s from Georgetown and from the University of Levin in Belgium where she studies a Fulbright scholar. Just before she took the bench. Judge Pitlyk was special counsel for the Thomas Moore Society, a national public interest law firm that I know well. She did civil litigation before that after starting her career at Covington and Burling in Washington DC. From 2010 to 2011, she clerked for then Judge Brett Kavanaugh on the DC circuit and we’re delighted to have Judge Pitlyk.

To my right. We have Judge Richard Sullivan of the Second Circuit Court of Appeals. He was appointed to the Second Circuit in 2018, I think around the same time that I was put on the Fifth Circuit. Judge Sullivan, before that he was a district judge on the Southern District of New York.

His undergraduate degree is from William & Mary, his law degree is from Yale. He clerked for Judge Ebelle. 10th circuits worked, had a distinguished career as an assistant US attorney in the Southern District of New York where he did lots of important drug prosecutions and I’ll dispense with all the awards he received for doing that. He wanted me to mention that he was as a district judge, he was confirmed 99 to nothing. Don’t know, I really don’t know what significance to draw from that. Obviously they weren’t paying attention.

Richard Sullivan (04:17):
Means one guy didn’t vote for me.

Kyle Duncan (04:19):
One guy, who will remain anonymous. He would’ve voted, it would’ve been a hundred to nothing. My vote for the fifth circuit was not quite as easy but I made it anyway. So we are delighted to have Judge Sullivan and Judge Pitlyk and I look forward to hearing their comments and so we will have Judge Pitlyk speak for a few minutes. Judge Sullivan, we may have some back and forth where I ask some questions or something like that and then we do want to build in time for questions from the audience, which we welcome. So without further ado, Judge Pitlyk.

Sarah Pitlyk (05:00):
Thank you very much. Thank you Judge Duncan. Thank you to Professor Alicea, and to Dean Payne, and to everyone at the Project on Constitutional Originalism and the Catholic intellectual tradition for the invitation to be part of this panel, to Camden White for managing the logistics of this visit and making me feel welcome. It’s an honor to appear alongside these distinguished judges, obviously, and also an honor to be considered someone who might have something of value to say on this important topic to CUA law students. I have to warn you, I don’t know if that was actually true that I have something interesting to say, but I’m flattered that someone apparently told you all that it was. The title of this talk, the Catholic intellectual tradition, A Jurist’s Perspective is daunting. I’m no expert on the Catholic intellectual tradition, though I am a lifelong Catholic and I did at times along my journey spend time learning about the Catholic faith and some of the great intellectuals who have spent time analyzing and developing its teachings.

I have spent the last 18 years or so preoccupied with somewhat different topics though, so I feel like I should issue the disclaimer that everything that I say on the subject of theology or philosophy, you should check with people who are better trained in those fields than I am. I also note that I’ll be leaning heavily on the subtitle of the talk, A Jurist’s Perspective. It was as a jurist that I was invited and so I hope no one minds that it is as a jurist that I will answer the question. Though I should also note I’m not speaking for all jurists, so I’m going to change the title to the Catholic intellectual tradition, one Jurist’s Perspective. The relationship between being Catholic and judging is complicated and discussing it in public as we are doing today feels a little subversive. That is, I think because there’s an increasingly prevalent view that someone with religious beliefs, or at least religious beliefs of a certain kind, should not be a judge or at least her religious beliefs should be regarded with suspicion when she’s considered for such an office.

I have always found that concern surprising given my understanding of what Catholicism in particular teaches much of which seems consonant with and supportive of my role as a federal judge in the modern day United States of America. In making that claim though I want to be clear, I’m not disagreeing with the view famously attributed to Justice Scalia that there is no Catholic way of being a judge. I would add that there’s no Protestant, Jewish, Buddhist, Hindu, atheist or agnostic way of being a judge either. In a very important sense the two projects are entirely separate. How the constitution and statutes should be applied does not depend on what one’s beliefs are about the existence of a higher power or other articles of religious faith. And besides, far be it from me to disagree with Justice Scalia, but I think there’s more to say about how Catholic teaching affirms and supports my work as a judge.

Ways that I don’t think that Justice Scalia would deny. For example, the project of applying historical sources to contemporary practical dilemmas is familiar to Catholics and in particular applying those historical authorities in light of a body of precedent developed over time by reflective well-meaning people who have worked hard to discern and provide guidance on how it should be done. I’m not saying, of course, that constitutional interpretation is just like biblical exegesis, but it is certainly not an alien idea to me as a Catholic that I would want to consult original sources and authoritative interpretations thereof when considering how to act in the present day. And that is partly in virtue of the next thing that I think being an Article three judge has in common with being a Catholic and that is respect for the concept of law. Christ taught, and the church teaches, that law is one of God’s greatest gifts to humanity.

Law helps us know what is right and wrong. Law serves the common good and law provides the opportunity for justice when something has harmed that good. In the Gospel of Matthew right after proclaiming that the meek will inherit the earth and that the kingdom of heaven belongs to the poor in spirit, Jesus told his followers that he came not to abolish the law but to fulfill it. Adding that unless your righteousness exceeds that of the scribes and Pharisees, you will never enter the kingdom of heaven. Jesus has been called the new Moses, the lawgiver. He issued his most important teachings as commandments, urging his followers to subordinate their contrary wills, to conformity with those laws, to love the Lord, your God, with all your heart and with all your soul and with all your mind and you shall love your neighbor as yourself. Throughout the Bible, conformity with law was seen as the way to maintain the covenant between God and his people. Thus, everyone who’s read the Bible is familiar with the idea of conforming one’s conduct to external requirements in the service of a good that transcends their own personal interests.

Now, someone might respond, yes, but what Christ was preaching was divine law. And surely the idea of fidelity to divine law does not tell us anything about whether or how to apply civil law or positive law. I mean, look how Jesus chastised the Pharisees for manipulating the law to serve their own purposes and for focusing on compliance with less important laws at the expense of the more important commandments to love God and each other. More broadly, doesn’t the very existence of a divine law or belief in such a law threaten to undermine one’s commitment to civil law? In a word, no. Christ exhorted his followers to follow both civil and divine law. And Christ’s followers taught the early Christians that civil authority was part of the divine plan, the Catholic intellectual tradition and specifically Thomas Aquinas provides an account of why, as Catholics, we should conform our conduct to civil law because laws are necessary for the common good and therefore provided a civil legal regime is reasonably just, we have a moral duty to abide by the laws that are promulgated by properly constituted civil authority.

And important for today’s purposes, someone who has been entrusted with the responsibility of being a judge in such a regime has a moral duty to apply such laws, even if they’re not the laws the judge would choose herself. An important corollary of this account of the normativity of civil law is that judges only have authority to enforce civil laws that have been promulgated by properly constituted civil authority. This is how a civil judiciary is reconcilable with Christ’s admonition to judge not lest ye be judged, no individual person has any authority to sit in judgment of any other. But the Bible also instructs elsewhere that human societies appoint judges and magistrates to provide right judgment. How can civil judges have the moral authority to do what no individual person has the moral authority to do? The authority derives from the promulgation of the law by public authority in the service of the common good.

This notion resonates strongly with the judicial oath, which does not ask me to swear to make good decisions, generally. It asks me to swear to discharge my duties under the constitution and laws of the United States, both the Catholic intellectual tradition and the judicial oath forbid me from exercising plenary power to bring about whatever outcome I think would be the best in whatever case is in front of me, I have the power and the duty to administer justice only according to the properly promulgated laws of the reasonably just society in which I have been entrusted with the power of judging. Just checking the time.

Thus, justice Thomas wrote of Justice Scalia after his death, his Catholic faith helped him to understand that he had no right or license to exceed his judicial authority or to abdicate his responsibilities. It imposed a constant judicial modesty or humility. He would be violating his oath if he imposed his personal views on others under the guise of a judicial opinion. And he had no inherent or personal right to judge his fellow man. Rather, his only authority was his limited role as an Article three judge and he had given his word to Almighty God to comport himself consistent with this limited grant of authority. I do not presume to be comparable to Justice Scalia in any meaningful respect, but, like Justice Scalia, I and every religious believer who has taken the judicial oath has sworn not just to her congregated family and friends, but also to God himself that she will abide by the duties and limitations of her office.

And on my understanding of the Catholic intellectual tradition, it supports and reinforces that commitment. Catholicism has other resonances with the job of a district judge, which I will not dwell on here in the interest of time, but I think are worthy of brief note. The oaths mandate to administer justice without respect to persons and do equal right to the poor and to the rich has obvious coherence in a world where everyone partakes of equal dignity and virtue of our creation in the image of God, Christ’s teaching about justice, mercy, and redemption have resonances in the factors district judges are required to consider at sentencing. And section 3553A’s admonition that no sentence shall be greater than necessary to serve those factors. That society is to interfere with the freedom of a person only to the minimal extent necessary to achieve important social ends, promoting respect for the law, deterring criminal misconduct, protecting society, fairness, and that among those ends is the rehabilitation of the offender, him or herself through education and treatment.

The fact that at every sentencing we are required to consider how this person can be redeemed and reintegrate successfully into the human community finds profound support in the teachings of the church, the concept of virtue and Aquinas’s, cardinal virtues, prudence, justice, temperance, and courage is extremely relevant to doing the work of judging well as they are to most of life. Perhaps prudence and justice in particular for the judge. But one needs both temperance and courage in the performance of judicial duties as well and certainly to survive the confirmation process. But the idea of virtue, the idea that it is possible and indeed incumbent upon us to cultivate mental and physical dispositions that contribute to the exercise of sound judgment is a challenging but empowering teaching of the Catholic tradition. And finally, the example of the saints inspire devotion to vocation and the common good even when it calls for sacrifice, adversity or carries a heavy psychological or emotional burden as judging can.

There are a number of saints who I draw inspiration from in performance of my work and in life, but certainly they include Thomas Aquinas and Thomas Moore, but also saints like Rose of Lima and Gianna and St. John Capistrano, the actual patron saint of judges who had to lead an army at the age of 70 and makes my work look comparatively easy. And then finally, I’ll just note that the Catholic faith provides tremendous consolation in placing my work in a greater context. That is not to say that I can take my own responsibilities any less seriously. The questions are hard and the stakes are high and it’s an honor to be entrusted with making such important decisions and one that should never be taken lightly. But it does help to keep from taking oneself so seriously and to keep from overrating one’s own importance and to reconcile the need to make such important decisions with one’s limitations as a human being.

I see in a glass dimly I cannot control tomorrow to a very significant degree. I cannot even control the litigants in front of me today in very few cases is a judicial decision going to tie everything up in a tidy bow, believing that my limitations are normal, unavoidable even, and that what happens to the people in my courtroom ultimately is not in my hands, but in the hands of a loving and caring God gives me great comfort and keeps me humble. These are all ways in which I think the Catholic tradition, whether directly in Christ’s example from the gospels or mediated through reflection of Catholic intellectuals, has helped me in fulfilling my professional vocation as a federal district judge. And notably, none of them involves consulting the teachings of the church when interpreting the Constitution statutes or precedent. I hope, and I firmly believe that my fellow judges who are not Catholic draw similar support and constellation in performing their jobs from their own belief systems while also living out their oath of fidelity to the constitution and laws of the United States. Thank you very much for the opportunity to speak.

Kyle Duncan (17:35):
Thank you, judge. That was excellent. Judge Sullivan.

Richard Sullivan (17:38):
So that was a lot of substance. What you’ll realize in a little while is that I’m mostly fluff. I have a lot of pictures because that sort of just helps me get my ideas across. I was a trial lawyer for a lot of time and I found that this was always an effective tool in summation and so I’ll give it a shot. I’m first of all delighted to be here. This is a wonderful law school with a wonderful faculty and I think momentum and energy that is palpable. So I’m really delighted to be here and to be part of this conversation. I will also say that this topic is a daunting one and it’s one that I am not sure I feel up to. I kind of feel like Al Smith. Do you guys know who Al Smith is? Al Smith was the governor of New York in the twenties and very popular, and he was nominated to be the Democratic presidential contender. So he was the first Roman Catholic to be nominated for presidential office and it spawned a lot of kind of virulence anti Catholicism.

And this was best exemplified by a piece in the Atlantic Monthly. It was an open letter to Governor Smith, basically challenging him for his Catholic beliefs and questioning whether a Catholic could be president and a good Catholic and implying clearly not. I have to say it kind of reminded me of a piece that showed up in the New Republic not that long ago. This was it. Originalism Is Dead. Long Live Catholic Natural Law, and this was a piece on Amy Coney Barrett around the time of her nomination. And we’ll come back to natural law, we’ll come back to Catholic intellectual tradition, but the letter to Smith was written by a Protestant minister and it was law. I mean they were given pages to basically recite all the things that Catholics presumably believed because this is what the Pope had written. And it quoted Pope Leo and his encyclical letter on the Christian constitution of states implying that the Pope is the head of all of that. It was a real challenge. Al Smith famously read this thing, learned about it, read it, and his response was, “What the hell is an encyclical?”

I have to say I kind of feel like the Al Smith of this group. I mean you’ve just heard from-

Kyle Duncan (20:05):

Richard Sullivan (20:06):
I mean you’ve heard from Judge Pitlyk who obviously is very thoughtful and very smart and I know she clerked for Judge Kavanaugh and he only hires really smart people. Judge Duncan is brilliant, the Beckett Fund, he’s a jurist in residence here. He has been shouted down at some of the best law schools in America. About me, other speakers in the past, Judge Depar and Judge Matty. I watched that video from last year. I don’t know if any of you were here for it. Daunting stuff. Way over my head, I will confess. I’m not sure why I’m here. And I said, this is not false modesty. If you don’t believe me, this is the New York Post editorial on me and this is the picture they used.

And my mother was more offended by that I think. Well, I was just doing my best. Anyway, so I guess my point is this. I don’t think I was anybody’s first choice for this panel. I think a lot of other people were probably asked and must have declined. I had a similar experience with my prom, but I’m glad to be here. So I looked it up, the Catholic intellectual tradition, I just figured I better go to the source, right? A good textualist so it looks at the words and you go to the right dictionaries or the right sources. So that’s what I did because frankly I don’t know that this term is that self-defining or maybe it is for these guys, but I had to look it up. So I found a good definition. This is Lee Strang. He’s associated with this law school.

He’s on the board of this project, right of the center, what do you call it? Project or a center, a project. I don’t know the difference between a project or a center, but in any event, this is what Lee Strang had to say. The Catholic intellectual tradition is the intellectual tradition that has its foundation in Aristotle, was largely synthesized with Christian thought by St. Thomas Aquinas and which has continued with recent proponents including Alistair McIntyre, John Finnis, Robert George, Russell Hittinger among many others. And that sounds pretty good. I’ve heard of some of those guys. I’ve heard of Aristotle. So that makes sense to me. And I think that look, the notion of natural law is one that goes back to St. Paul. In the Romans, he talks about the Gentiles who don’t have the law, but nonetheless written on their hearts is the law that’s been revealed to them through human nature.

This then is developed further hundreds of years later. But by St. Augustine, St. Thomas sort of brings it all together, who’s then got many more sources. He’s got access to the ancient classical thinkers through actually the work of the Muslim scholars, ironically. But nonetheless, and then I think I would even include Thomas Moore in this group. He’s the patron saint of lawyers and he’s one that we all sort of look to certainly for the cardinal virtue of courage, but I think it’s more recent than that as well. GK Chesterson described natural law as right reason in things which man with his unaided reason can see to be right. And that’s a theme that runs throughout Catholic thought and not just Catholic thought, but it’s even more modern. Edith Stein, who was a convert to Catholicism, became a Carmelite nun, was killed at Auschwitz, had this quote, which has always resonated with me, but whoever seeks the truth is seeking God, whether or not he realizes it.

And I think that is an appeal to natural law. There is something that transcends cultures, transcends denominations or faiths, an acknowledgement of that there is something hardwired into humanity that is natural law. So what does this have to do? However, with American law, I mean if you go back and look, the Declaration of Independence was signed by only one guy who was Catholic, Charles Carroll of Carrollton. A dozen years later you got the Constitution, two guys who happened to be Catholics, again, from Maryland. And so, one could question what influence if any, did Catholic intellectual thinking on natural law or anything else have on our system of law today? This is my church in Manhattan. This is the oldest church in New York state. It’s St. Peter’s on Barkley Street. It’s downtown. It’s kind of famous. That’s where Elizabeth Ann Seton was converted. She was received into the Catholic church there.

But the reason I have this photo is that this church was created in 1785. That’s the first Catholic Church in New York state. And it’s just two years before the Constitution. One could wonder, well, what the heck does the Catholic intellectual tradition have to do with American law, American constitutionalism? And I guess that’s a good question and I think where you kind of go is Blackstone. Blackstone was not a Papist. He was not a Catholic, but Blackstone wrote his famous commentaries on the law of England in the 1760s into the early 1770s, and this was the most influential legal writings in the colonies. It was absorbed and devoured really by the folks at the continental Congress who wrote the declaration, the folks who went to the constitutional convention.

And Blackstone, this is from Blackstone, when the Supreme being formed the universe and created matter out of nothing, he impressed certain principles upon that matter from which it can never depart. When he put that matter into motion, he established certain laws into motion and movable bodies all have to follow this. This is the Newtonian physics basically. But he also says that man, as a creation of God, is again hardwired to follow certain natural laws. So that is Blackstone, and he’s talking about a divine law that consists of revelation, but also natural law and then manmade law, which is a common law and statutes, but he recognizes that these things are all working in tandem in a society.

The men who wrote the Declaration of Independence, certainly you can see it in there, right? Talked about the laws of nature and of nature’s God. And I think this is something that resonates throughout our early history as a nation. This is James Wilson, one of the leading lawyers of the Colonial period and into the early federal period. And he certainly talks about natural law that it’s fitted to us by God, communicated to us by reason and conscience, which he calls the divine monitors within us. This is James Kent, chancellor Kent. He’s one of the giants of the New York bench. He’s a common law judge in New York, but he also is talking about the application of the dictates of natural justice. That’s part of what judges do in his mind. Joseph Story who writes the commentaries on the Constitution, which kind of replaced Blackstone, really, as the authoritative text for American law students is talking about natural law constituting the first step in the science of jurisprudence.

And he is really forming the early teachings of law school. I mean Harvard Law School doesn’t even begin until he’s on the court, but he teaches there and he forms that legal education and he thinks that natural law is part of it, but what does that have to do with judges? I mean, that’s really the question I think. Does it have anything to do with judges? Now that’s an interesting question and I think if you look at Blackstone, I don’t, at least as I read it, I don’t see Blackstone suggesting that judges have the authority to apply natural law to strike down acts of parliament or to decide cases. I think he dodges this a little bit in his commentaries because he is really writing about the common law and he’s really writing about the laws of England, not really natural law, but I think it’s hard to find in Blackstone the notion that judges have jurisdiction for natural law decision making.

I don’t know that you’ll find anything more supportive of natural law jurisdiction in the Federalist Papers. I think that you can read the Federalist papers and say that, yeah, look, judicial review was contemplated. This is something that they were thinking about. It’s better developed, I think, at the convention in the notes of the convention. But I don’t think there’s anything in the Federalist papers that really supports judges applying natural law that they get to decide cases on the basis of natural law. And then there’s an early Supreme Court case, pre Marshall. Calder versus Bull, which really teases this up nicely.

You guys have anybody read this? You guys taken Con Law, nobody’s taken con law. You’re all first years. Well, you’ll get there anyway. I don’t know if you’ll teach it, but this is James Iredell, on the left, and Samuel Chase, on the right. And this is a case about an ex post facto law, state law, and it’s not even worth getting into the details, but Chase seems to be channeling natural law as a basis for overturning a state statute, an act of the legislature because you can’t call it a law that’s contrary to the first principles of the social compact, can’t be considered a law and the court gets to strike it down.

Iredell disagrees. Iredell basically says if this law, either a law of Congress or a law of a state, violates the Constitution, then it’s out and we have an obligation to shut it down. But if it’s just something that goes against the judgment or against the natural justice that is available and knowable to a judge, that’s not sufficient. And there’s another passage in that opinion where he seems to have, frankly, I think be a skeptic of natural law. I don’t say’s impossible to read this passage and not conclude that he’s probably skeptical. But what says is basically that principles of natural justice are available to everybody, legislators as well as judges. Judges have no more insight than others. And if you look around, people seem to not be able to agree on these things. And so judges don’t get to claim it all for themselves. That’s a debate in the early innings of the Republic.

It’s 1791 and it’s one that I think has largely been resolved in Iredell’s favor. This is Francis Scott Key, the guy who wrote the words to the national anthem. But Francis Scott Key was actually, in his day, a pretty big shot lawyer. He argued in front of the Supreme Court, I think 40 times, and he represented the slaves who were basically recovered on a ship that was a slave ship in international waters. Ship was brought back into the US. This is not the Amistad, this is the Antelope case. And Francis Scott Key makes a clear appeal to the laws of nature in which all men are free. Now this is an international waters kind of case, so it’s understandable why he might be resorting to that, but in this case, John Marshall basically shuts it down. He seems to acknowledge that the law of the slave trade is contrary to the law of nature.

It says that’s basically can’t be denied. Nonetheless, we don’t get to resolve cases on the basis of that natural law, not where the positive law has filled these gaps. That is, I think, an announcement of what are the limits of the federal judiciary. Now, I think there have been appeals to natural law throughout our history. Frederick Douglass certainly is appealing to natural law as a basis to overturn slavery. And Susan Villa Anthony, I mean as she went to trial when she tried to vote in 1872, arguing that the 14th Amendment, it wasn’t really an appeal of natural law, it was an appeal of the meaning of the 14th Amendment, but nonetheless asking judges to step in and to go perhaps beyond the text of the Constitution or whatever the statute is that’s being interpreted. This is Richard Conway Casey. I bet nobody knows who he is. You know him, Joel? Richard Conway Casey was a judge on my court, Southern District of New York, and he’s got a dog with him because he was blind.

Now, Richard Casey was a really devout Catholic guy, and Richard Casey got a case in which the partial birth abortion law that had been passed by Congress was being challenged by Planned Parenthood basically. And so he had to decide whether or not this partial birth abortion law was consistent with or could stand in light of Roe v. Wade and Planned Parenthood versus Casey. And this is a guy who’s a pretty staunch church man. This is a guy who’s had a pretty firm views about the right to life, the sanctity of life, the personhood of an unborn child. Nonetheless, he concluded based on the precedence that he felt compelled to follow, that the law had to be struck down, and that’s what he did. Now, he wrote an opinion in which he characterized partial birth abortion in pretty stark terms. He described it as gruesome and barbaric and he did not shade what the process consisted of, but he did not strike down the law on the basis of natural law or anything else.

I think if you look at Nuremberg, I mean that’s Robert Jackson is Supreme Court Justice, who was the chief prosecutor at Nuremberg. Now, now we have a very well-developed body of international law through treaties and things. But back in the wake of World War II, of the Nazi Holocaust, we really didn’t, and it does seem, I think one could certainly argue that these were appeals to natural law. So where are we today? I think that there are some, like Hadley Arkes. Hadley Arkes is a very well-respected philosopher and thinker and scholar. He’s written a book very recently called Mere Natural Law, which is channeling or playing on mere Christianity, CS Lewis. And he is suggesting that judges do have authority to go to natural law to help them resolve disputes that are before them. That is, I think, a minority view, but it certainly is one that is being discussed and developed. There is a terrific response, a book review of that book. No, I mean it. I really have to say I didn’t meet Professor Alicea until today, but I certainly read his book review before.

Look, I think it’s a great dialogue and it’s one that anybody who’s thoughtful and interested in this kind of a subject ought to be reading about. I think personally, Professor Alicea has the stronger argument. I do think as Judge Pitlyk said, I think judges have an oath. And that oath really is that we will support and fan the constitution and laws of the United States. It doesn’t extend that authority beyond those documents, those positive law documents. And so I think the natural law matters and it needs to be taught in schools, in places like this, in universities and colleges all over the country. I think that I worry that a lot of scholars have left the campuses because they’re not hospitable places. And I think that some of them would rather be preaching the judges, encouraging them or emboldening them to go a little farther, to be perhaps more willing to exercise their natural law and muscles to resolve cases.

I think judges, by and large, are not taking the bait on that. I’d be surprised if they ultimately do. But I do think that the natural law and understanding of an appreciation of it from any traditions, from the classics, from Aristotle, Plato, and Cicero, up also to thinkers from other religious traditions, these are things that I think people ought to be familiar with. They ought to be studying, they ought to be discussing because it will make one a better lawyer and a better law student and ultimately a better and more informed citizen. So I guess that’s kind of where I come back, ultimately. Anybody know who this is? Will, you must know who this is. Learned Hand, who said “Learned Hand.” Will’s going to give you a dollar. Will Cayman is my former law clerk. He’s on the faculty now. That’s a real coup, I have to say.

He’s a terrific and brilliant guy who is also generous and thoughtful and warm, and so you’re very lucky to have him. He doesn’t know who Learned Hand is apparently, but nonetheless hand, the reason I have him here hand is probably the most famous judge who was not a Supreme Court justice in the land. And certainly the most famous judge from my court, maybe with the exception of Sonia Soto Mayor, but Hand gave a speech in the middle of World War II called the Spirit of Liberty speech. And it was a speech that he gave to a group in Central Park, new citizens being sworn in. And it’s an interesting speech and it’s one I think that sort of makes a point that I was just making. What he says is that, sorry, let me find it and put on my glasses.

He said, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes. Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can even do much to help it.” And I think his point is that ultimately judges have a role to play. Judges have something. It’s an important role to play and it’s sometimes a really hard job. But, ultimately, this project, which is the American constitutional system of government depends on citizens, people like yourself. Some of you I’m sure will go on to be judges, you’ll be lawyers who are involved in some of the most important cases of the day, but you’ll also be citizens. And it does require citizens who are well-formed, who are thoughtful, who understand their responsibilities and understand the limits of their government.

A government that is premised on popular sovereignty, that is premised on limited government, limited powers and separation of powers and federalism. And these are things that all go towards making what the framers and what the folks since then, including Abraham Lincoln, thought was the best hope for mankind. So I think there’s a reason why judges are reluctant to stray beyond the Constitution and dabble in natural law because ultimately they don’t want to do anything that’s going to do violence to a system that has ultimately, although not perfect by far, has certainly done more perhaps than any other constitution to result in greater happiness, and greater prosperity, and the realization of one’s true purpose.

So I guess I’ll end with one last picture. And this is Avery Dulles, who I think is part of a Catholic intellectual tradition. Dulles was the son of, I think, the CIA director, right? Or he had a father and an uncle who were both very, very prominent public officials during the Cold War. He became a Jesuit and a theologian and he wrote a piece on the death penalty that I read years and years ago. But it struck me in something that it said, and it really turns on me finding it now. Sorry, bear with me.

Kyle Duncan (39:58):
Is this the one that was resulting the exchange with Justice Scalia or I think?

Richard Sullivan (40:01):
No, I mean, no, not this was a piece, really, it was about the Catholic bishops wrote a piece on the death penalty and he just went through it sort of carefully to just sort of see, well, what was the Catholic social teaching on the death penalty? But there’s a line that really isn’t about the death penalty as much as I think what judges do, and I just can’t find it. But his basic point is this, I’ll paraphrase it. He says, I often wonder and am asked whether a judge or even an executioner can participate in the death penalty with love, because ultimately, that is what we’re called to do. As judges, as citizens, we are called to love our fellow citizens. And that means, as a judge, imposing a sentence, even the most extreme sentence of a death penalty, which I’ve never done, and I assume you’ve not either, Sarah, but that has to be done in the spirit of love and compassion and respect to recognize the dignity of this person.

I think that is something that judges can do and must do. I think that’s consistent with the cardinal virtues that Thomas Aquinas described and that Judge Pitlyk mentioned. And I think no one in America, whether they’re writing for the Atlantic Monthly or New Republic or anybody else, I think would be sorry to see a judge bring those attributes of character and care to the project of sentencing. And so I think that is something that Catholic judges and all judges need to remember, that our system turns on the dignity of the individual. And that is something that judges have to embrace and they have to demonstrate every day they work in that job. They’re ambassadors for a constitutional system of justice and they need to model that behavior. So I think this is a great opportunity to reflect on these things.

As a judge, we don’t, I mean look, we’re not doing the kinds of cases that are all the time in the supreme Court. We’ve got more mundane things, but nonetheless, what we do is important to the entire society and to the entire fabric to the commonwealth. And so you will be part of that too as lawyers. You’re going to take an oath in which you swear to support and defend the Constitution of the United States, and you have an obligation, then, to make these institutions stronger and to make this republic stronger than you found it. So take that very, very seriously and that means examining your own conscience and examining your own values at every step of the way. All right, I’ll shut up.

Kyle Duncan (42:29):
Excellent. Thank you. See, you set the bar very low and then you hit us with Blackstone. I see what you’re doing. Well, that’s great. Well, I do want to make sure that we have, we’ve got 15 minutes left. I want to make sure that students can ask questions. I appreciate both of your comments. Judge Pitlyk, a thread that ran through your comments, that struck me, is that your Catholic faith helps to remind you that your job as judging is not about you. It’s not about what I think, it’s about the law.

I very much have had that experience myself and we want to cultivate the virtues. And I’m interested to hear what you think the most sort of useful virtues for you have been as a judge for me, I was not a judge before. I mean, you’ve been a judge for a long time. So you’ve, you’ve been doing this since I was born. You’ve been a judge. I’ve been on the court five years. So it is been a big transition. I don’t know if it’s been such a big transition for you, but I have found not, so much. Of course we don’t get a case and open up the catechism. I mean that’s a caricature and it’s useful for you to put up the Al Smith stuff. Was that the Rum Romanism or rebellion guy? It’s like, or maybe that was during, that was a grant campaign, but there’s been that sort of anti Catholicism. The Catholics are just taking orders from the Pope.

JFK had to deal with that when he ran for president. That’s an obvious caricature. No Catholic I’ve ever heard of would consult the magisterium of the church in order to decide an ERISA case. It’s kind of absurd, but we do have to form our, hopefully be formed by the Holy Spirit in the proper virtues to do the work that’s in front of us. And I’ve found that humility is probably the most important one. You put on this robe. People stand up when you walk into a room, people call you judge, you have all this power and you do have a lot of authority, and yet you have to constantly remind yourself, I find, well, this is just my job. I’m not imposing my views on other people, I’m following the law. I’m curious to know if y’all have had that kind of experience.

Sarah Pitlyk (44:51):
I’ll go first if you don’t mind.

Kyle Duncan (44:52):

Sarah Pitlyk (44:53):
I absolutely think humility is an important virtue. I find it that the job is humbling in and of itself in that not only am my powers are constrained by what the law is and what I am empowered to do, but the job is so big and so difficult, and I’m not complaining. It’s a wonderful job, but it is a very, very difficult job. You can’t help but be humbled by the sort of magnitude of the task and the fact that you’re one person, though thankfully, with a lot of support from other people. That you’re just one person who’s asked to do so many different things, to know so many different kinds of answers, so many different, and so-

Kyle Duncan (45:39):
[inaudible 00:45:41].

Sarah Pitlyk (45:41):
It’s just me. Exactly. And the buck always. Yes.

Kyle Duncan (45:44):
With other people checking us.

Sarah Pitlyk (45:45):
Not to say my job’s harder than some other people.

Kyle Duncan (45:49):
Oh, I don’t know.

Sarah Pitlyk (45:51):
But it is true that the buck always stops with you, which I know before I took the job, I was advised memorably by someone always to remember that the stories I told before that weren’t funny, still aren’t funny because now people will laugh when things are funny or not. And so essentially don’t let the-

Kyle Duncan (46:10):
See, they’re laughing, right?

Sarah Pitlyk (46:11):
Yeah, yeah. Thank you very much. I expect that now. No, but don’t let it go to your head was the advice. And I find that every day the job prevents me from letting it go to my head. I’m constantly being reminded of my limitations, but the idea of practicing humility and understanding that whatever resolution I’m going to provide by way of the law is not going to be satisfying to everyone in front of me, is not going to resolve every issue that’s going on in these people’s lives or even in this case, is an important one to keep in mind so that you don’t become overwhelmed by the task, as well. But I’ll say one other virtue that I think I learned as a clerk, and I hope that I’m working on being better at as a judge, which is the idea of justice. And I don’t mean justice in the getting everything right all the time, but giving every person their due.

The idea of making sure that I’m never dismissive of an argument or I don’t give enough credit to a litigants, it’s often a lopsided affair with the briefing. Maybe we have a first aid litigant or maybe we just have one lawyer who clearly is out of their depth against a team of lawyers who clearly aren’t. And those are the most challenging cases because you are working very hard to make sure that the decision you make is based on the law and not based on the practical asymmetry between the quality of what you’ve been presented. And so there is a constant, you could always be better at giving every litigant their due in the sense of building their argument to be the best thing that it can be, and then responding to that. And that is a hard thing to do sometimes, an impossible thing to do, but it’s something I think all judges have to work on all the time.

Kyle Duncan (48:15):

Richard Sullivan (48:16):
I guess I would say this, I think there are different jobs and different roles in life that come with occupational hazards. I teach Columbia and I teach the same class now. It’s been several years. And I think the occupational hazard for a teacher is that you can get repetitive, you can say the same stuff over and over, and you have to be careful that you’re not just saying things in rote. The occupational hazard for judges, I think is that you think that you know more than everybody else. You think that you’re right all the time. You are used to people kind of bowing and scraping. And life tenure is an important thing for, I think, institutional independence for branch independence. I think that has been demonstrated to be necessary, but it can do a number, I think, on an individual. And so I think judges have to constantly check themselves.

And so I remember there was a judge in my court, a guy named Charlie Bryant, who has since passed away, but he was an old veteran by the time I got there. But I remember when I was a prosecutor bringing a search warrant affidavit to his chambers, and I was waiting for the judge to come out. And there was this big portrait in his chambers of a judge from a long time ago. Obviously it was an oil painting. And I asked the secretary, I said, who is that? And she had obviously been asked this before. I assumed it was like the judge he’d clerked for or something. And the secretary said, “Oh, that’s Martin Manton. He was the judge on the second circuit. He was convicted for taking bribes.” It was like, I said, “Well, why does the judge have him on the wall?” And she’d obviously heard this question before and she said, “Oh, the judge thinks it’s a good reminder of judicial fallibility.”

And I thought, well, that was interesting. And I think judges need to be reminded of that. I have a mirror in my office actually, which is a good reminder of the same thing. But Charlie Bryant, when I became a judge, I remembered him telling me, he said, “Remember this. Everything you say and do in court or on paper will be perceived by people. It might be the litigants, it might be the lawyers, it might be tourists who have just walked into a courtroom in New York City. And that’s what they wanted to do. They wanted to see what it’s like and everything you say or do is an opportunity to enhance or diminish the reputation and standing of this branch and ultimately, this system of government.”

And I always remembered that because there are times when you’re having a bad day as a judge, some lawyer just will not shut up and just needs to get the last word, and it’s just beating a dead horse. But you need to remember that there might be somebody in that gallery who will be affected by you losing your cool, and that’s not what we want. You’re an ambassador for, not just the branch, but really for our entire system of government. George Washington, on the courthouse right next to mine, there’s the state, if you’ve ever watched Law and Order, it’s that state courthouse, 60 Center Street. Downtown Law and Order. You guys watch this one? Yes. And there’s a quote over it and Will, what’s the quote?

Speaker 5 (51:16):
Sincere form of good government.

Richard Sullivan (51:19):
I take back everything I said about Will Kamin. The true administration of justice is the firmest pillar of good government. And that’s a quote from Washington actually, who he wrote in a letter to his attorney general, his first attorney general saying, we need to appoint men to the judiciary. And by then it was only men and only a certain kind of man was going to get that job. But nonetheless, a recognition that most people were never going to meet the executive. Most people were never going to meet their congressperson or their senator, but they might wander into court. They might have interactions with their government through the court system.

And it was important who these judges were. And I have to say, I mean, I think just looking at these two judges and my colleagues, I think Washington would be very, very impressed with the judges who are now 200 plus years later doing the work of the federal courts. But it’s got to always be a struggle, and it’s got to be something that judges don’t get complacent with because the occupational hazard, it can be disastrous and there are bad stories that you hear about and it’s not good for the institution.

Kyle Duncan (52:19):
That’s right. Great. Well, we do have five minutes left. If there are any questions, we would love to have them. Please just raise your hand about anything.

Speaker 6 (52:32):
The microphone is recording, not amplified.

Kyle Duncan (52:37):
Yes, sir. Wait, hold on one sec.

Sarah Pitlyk (52:40):
The microphone or the people at home can’t hear.

Kyle Duncan (52:44):
They’re watching right now.

Speaker 6 (52:45):
Mic check. Hello. It’s not recording.

Speaker 7 (52:49):
Oh, okay. Sorry. Well, I was going to say, do does the notion of inalienable rights play a large role in the scheme of natural law?

Kyle Duncan (52:56):
Say again?

Speaker 7 (52:57):
Does the notion of inalienable rights play a large role in the scheme of natural law?

Kyle Duncan (53:00):
Does the notion of inalienable rights play a large scheme in natural law?

Sarah Pitlyk (53:07):
Who’s, Joel, do you want to take this one?

Richard Sullivan (53:11):
Look at my remarks. I just read the cliff notes. So I don’t-

Sarah Pitlyk (53:12):
Yeah, yeah, I know, yeah.

Kyle Duncan (53:14):
Well, I mean, look, again, I’m no, on this panel, I am Catholic, but I’m not intellectual and I’m aware of a tradition. But I am a Jurist and I have a perspective. So I mean, I like to think of concepts like that inalienable. If you think about what that means, it means I can’t give it away, right? There’s must be something inherent to me as a human being that says, I couldn’t give that away. I can’t give away my life. I can’t give it away. It’s something that’s inherent to me. And is that a natural law idea? I think it is. I think that inheres in what it means to be a human being. I think animals, I think animals, you shouldn’t abuse animals, but do animals have inalienable rights? I don’t think so. I doubt it.

Sarah Pitlyk (54:08):
I think classical natural law theory traffics less in inalienable rights and more in the goods, the things that are good for humans, all humans. And what is constitutive of human flourishing being common among all individuals? So when you say, does natural law theory or natural law talk about inalienable rights? I’m not an expert in this, but when I think about the values or the goals of natural law theory when they talk about the human person, I think think more in terms of the goods or ends. And I think they think there are universal goods, things that are good for all human beings, like being free and having various kinds of opportunities and that all conduced to flourishing for all humans. How that relates to the concept of rights in a civil society would be a very complicated philosophical question that I’m not prepared to answer.

Speaker 8 (55:12):
You mentioned the case about the gentleman who had to decide between his Catholic faith and the law when it came to partial birth abortion, and I’m sure there’s many Catholics in this room, especially as baby one L law students, that being faced with that choice can be terrifying sometimes. Do you find in, your experience, that that happens often where you’re met with the case, you have to make a decision and you go, “Man, I wish I wasn’t here right now. I wish I didn’t have to make this choice.”

Richard Sullivan (55:43):
That’s a great question.

Sarah Pitlyk (55:45):
Well, my answer’s probably different from yours. We do it different. Well, you were on the district court, so you can answer it from both perspectives. So you go.

Richard Sullivan (55:51):
Well, I would say, and I think I know where you were going. I think that where it most often presents itself is with sentencing. I’ve never had a death penalty case. New York, there’s not many death penalty cases. When I was a prosecutor, I didn’t have any, and when I was a district judge, I didn’t. But you do get cases involving mandatory minimum sentences. Congress has decided certain crimes carry with them a mandatory sentence of 10 or a 20, whatever it is, and the judge has no ability to go below that. And there were times when I have thought this is not the sentence I would have imposed. I think there would’ve been a good reason to go lower, but Congress has tied my hands.

I think that’s not that uncommon. I think that in the sentencing context, judges have to deal with that. So I think judges have to be prepared for it, and I think judges have to be prepared even if they’ll never get a death penalty case to think about what are they going to do in those kinds of cases. I mean, judges can recuse if they think that they can’t fairly and impartially sit on a particular case. But I think most judges recognize that there will be times when they have to carry out the law, which is unambiguous, even though they might’ve written the law differently or have never allowed such a law to be passed were they a legislator?

Sarah Pitlyk (57:08):
Yes. I’ll just add to that quickly. Apart from sentencing though. And sentencing is a huge part of the job. Many sentencings every week in my jurisdiction. And so this is something that you reckon with mandatory minimums. Other times when you don’t have discretion. Apart from that though, very little of the docket of the federal courts raises the kind of intense moral dilemma that you are describing. So much more of our docket has nothing at all to do with any issue on which a particular religious tradition might have a teaching that might be in conflict with the law. ERISA was mentioned earlier, but I mean the numbers are, we have social security appeals and we have the employment discrimination cases. The bread and butter of the work of the federal judiciary is not these cases that make headlines and that you hear about a lot in the newspaper. However, I will say sentencing and I couldn’t agree more is the most difficult of all of the responsibilities of a district judge, and there are times when you wish you could do something other than what you were required to do.

Richard Sullivan (58:22):
Though I will say, I don’t do sentencings anymore. I’m now on the circuit. But people say, “Well, I bet you don’t miss the sentencings.” And I don’t miss them in the sense that I didn’t find them fun, but I never wanted to pass it off to someone else. It seemed to me that is the exercise of power in a way, unlike any other, that a judge has given discretion in most cases to exercise. It’s an opportunity to exercise that discretion and that power wisely, and that can be at times satisfying and exhausting. But it’s not something I ever wanted to just pass off to the next guy. And if that were the case, then it would’ve been time, I think, to move on.

Kyle Duncan (59:01):
Should we? We’re done? Okay. Well thank you very much, Judge Sullivan, Judge Pitlyk for your time.

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