Christie Launius 1. Class Analysis from the Inside: Scholarly Personal Narrative as a Signature Genre of Working-Class Studies

The proclamations at issue here are not flat prohibitions like the banon abortion, which (properly defined) is always immoral.

Catholic judges must answer some complex moral and legal ques-tions in deciding whether to sit in death penalty cases. Sometimes (aswith direct appeals of death sentences) the right answers are not obvi-ous. But in a system that effectively leaves the decision up to the judge,these are questions that responsible Catholics must consider seriously.Judges cannot-nor should they try to-align our legal system with theChurch's moral teaching whenever the two diverge. They should, how-ever, conform their own behavior to the Church's standard. Perhapstheir good example will have some effect.

We do not defend this position as the proper response for a Catholicjudge to take with respect to abortion or the death penalty.

lives. Some judges see a positive as well as a negative side to this roleresponsibility-a duty to do one's job, not just to refrain from undercut-ting it. This is the position Governor Mario Cuomo took in defendinghis decision to allow abortion in the state of New York.[T]he Catholic who holds political office in a pluralistic democ-racy... bears special responsibility. He or she undertakes tohelp create conditions under which all can live with a maximumof dignity and with a reasonable degree of freedom; where eve-ryone who chooses may hold beliefs different from specificallyCatholic ones, sometimes contradictory to them[.]In fact, Catholic public officials take an oath to preserve theConstitution that guarantees this freedom.... [T]o assure ourfreedom we must allow others the same freedom, even if occa-sionally it produces conduct... which we would hold to be sin-ful.169Justice Brennan took a similar position during his confirmation hearingsin 1957, when he was asked whether he could abide by his oath in caseswhere "matters of faith and morals" got mixed with "matters of law andjustice." He said:Senator, [I took my] oath just as unreservedly as I know youdid... And... there isn't any obligation of our faith superior tothat. [In my service on the Court] what shall control me is theoath that I took to support the Constitution and laws of theUnited States and [I shall] so act upon the cases that come beforeme for decision that it is that oath and that alone which gov-ems.170We do not defend this position as the proper response for a Catholicjudge to take with respect to abortion or the death penalty. We mentionit here for a different reason. The question in a disqualification motionunder § 455(a) is whether a reasonable observer would expect a Catho-lic judge, simply by virtue of membership in the Catholic Church, to beunalterably opposed to capital punishment. It is a sociological observa-tion, not a moral conclusion. And as a sociological observation aboutjudges who are Catholics it is, for the reasons we have noted, unfortu-nately inaccurate.

Our final observation about the first point is that many judges-evensome who would regard themselves as orthodox Catholics-when facedwith a conflict between moral and legal duties, see themselves as boundto enforce the law. Part of the explanation for this is that the moral-legal distinction is not as clear as we might wish. As Robert Cover putit, "the moral-[legal] decision [is actually] a moral-moral decision-a de-cision between the substantive moral propositions relating to [life andthe death penalty] and the moral ends served by the [legal] structure asa whole, by fidelity to it."'68 There is a significant moral dimension tothe legal structure created by our constitution. That system empowersCongress to define our corporate objectives, directs judges to enforcethem, and sets limits on the power of judges to change our course. Itwould betray a public trust and undermine this system if judges whoflatly opposed capital punishment were to cheat-to take charge of sen-tencing hearings and manipulate the law and evidence in order to save

n Part IC we explained that thejudge's moral duty varies with the nature of the judicial task. Catholicjudges are not forbidden to have anything to do with the death penalty.We think that they may sit on the guilt phase of capital cases-providedthey withdraw before sentencing. They may handle appeals challengingconvictions and (perhaps) even sentences. They may also engage incollateral review of cases where the defendant was sentenced to death.Recusal motions directed at these activities should necessarily fail. Butthe judge's cooperation with evil passes acceptable limits when he con-ducts a sentencing hearing-the issue with which we are now concerned.

at all. The issue is whether a reasonable person might doubt his impar-tiality.

Section 455(a) requires disqualification "in any proceeding in which[the judge's] impartiality might reasonably be questioned.''"6" This is aneasier route than § 455(b)(1) because it does not require proof of actualbias or prejudice.6' It is not a question about the judge's state of mind

cult in cases where the judge is asked to review the death sentence itself.Unless he intervenes the defendant will die. And his act of affirming,whatever its legal significance might be, looks a lot like approval of thesentence. Conscientious Catholic judges might have more trouble withcases like these than they would at trial

Recusal problems on appeal are like those at the guilt phase, thoughthey are not identical. From a moral point of view deciding an appeal isan act of material cooperation, not formal, and one where it is difficultto say what outcome is morally preferable. The issue is especially diffi

Considerations like this make it exceedingly difficult to pass moraljudgment on the appellate review of sentencing. The morality of theacts which fall under that description will, it seems to us, vary from oneset of circumstances to another

Conscience is not a uniquely Christian idea69-many people sub-scribe to the notion of an interior faculty that guides our moral judg-ments." Christians generally maintain, however, that judgments of con-science are more than natural insights. They are judgments illumined byfaith (or darkened by error and vice).'

There are several important differences between this case and thefirst two. There is nothing intrinsically wrong with trying the defendant.Indeed it is a good thing to try and convict criminals who murder inno-cent people. It is doing justice. This is not like sentencing the defendantto death-a punishment that is wrong despite the defendant's guilt.Moreover, the judge who conducts the trial need not intend to bringabout the defendant's death. Think of Washington v. Davis.77 The gov-ernment gave a verbal ability test to candidates for the police force.There is nothing intrinsically wrong with this. It is a good idea to havecops who can communicate. The test also disqualified more black thanwhite candidates. But the government did not intend this effect; indeedit regretted it. So too here. The judge's unintended contribution tocapital punishment is an example of material cooperation.7

we currently know very little about how curricular divisions correlate with students' social background

in 1969, when the CUNY board of trustees adopted open admissions.

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