Hitchens: Kagan Should be Grilled Over Recent Vatican Brief

By Ashby Jones

Last week, we wrote an article for the WSJ on the U.S. government’s decision to side with the Vatican in a high-profile case involving alleged sexual abuse against a former priest. Click here for the story; here for the LB post on the story.
The solicitor general’s office urged the Supreme Court to set aside a federal appellate court ruling in a case that had allowed the Oregon suit to go forward against the Vatican. Specifically, the SG’s office argued in its brief that the Ninth Circuit misapplied the Foreign Sovereign Immunities Act, a 1976 federal law governing when U.S. courts can hear cases against other countries.
Writing for Slate, noted author — and no friend to organized religion — Christopher Hitchens recently weighed in on the brief which, Hitchens notes, came out of Elena Kagan’s office, though it wasn’t signed by her specifically. (Neal Katyal, the Acting SG, was the top name on the brief.)
Hitchens, not surprisingly, isn’t a fan of the Obama administration’s position in the case, and thinks that those “scrutinizing the nomination of Elena Kagan to the Supreme Court might want to pay some attention to the decision of her office,” a decision Hitchens characterizes as taking “the side of the Vatican in the continuing scandal of child rape and the associated scandal of a coordinated obstruction of justice.”
Continues Hitchens, on the decision to invoke the Vatican’s sovereignty as a justification for judicial immunity:

There are a number of fascinating ramifications of this opinion. It is not usually considered polite to mention that the majority of Supreme Court justices are practicing Roman Catholics. . . . We will soon have a Supreme Court that contains no Protestants and no secularists and which is being asked to rule on a matter central to the religious beliefs of a majority of its members, who are bound to regard the man formerly known as Joseph Ratzinger as the vicar of Christ on earth. If they now take refuge in the lesser claim that he is the bureaucratic head of a foreign government, will that serve to assuage their consciences?

Hitchens’ piece ends with this flourish:

It will be a disgrace if the Supreme Court overrules the sane and legal finding of the 9th Circuit. . . . [A]t last the majesty of American law is being deployed in this matter—but on the side of an institution that has irreparably stained itself with crime. Kagan and her colleagues should be made to feel the shame of this, as should the president, who talks so glibly about human rights and equality before the law.

The Vatican, through its lawyer, Jeffrey Lena, has argued that the Vatican doesn’t employ priests or exercise the requisite control over them to justify the U.S. courts exercising jurisdiction over the Vatican, let alone establishing liability. In regard to the Oregon case, Lena noted that the plaintiff has not provided evidence that the Vatican moved the priest in question around, or had control over the priest.
Specifically, the solicitor general’s office argued in its brief that the Ninth Circuit misapplied the Foreign Sovereign Immunities Act, a 1976 federal law governing when U.S. courts can hear cases against other countries.
LBers, any thoughts?