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Say what you will about President-elect George Bush, but one thing’s for sure: The guy’s got a lot of heart. And so does his crew. Just listen to him. In a speech nominating John Ashcroft for attorney general, Bush said: “He’s a man who has got a good and decent heart.” And later: “I’m confident that he’ll withstand the scrutiny about his fairness and his heart… . [T]he United States senators, if they are objective and they take a look at, in this case, Senator Ashcroft’s heart and his record, they’ll confirm him.” On Bush’s own behavior during the presidential primaries, when he spoke at South Carolina’s Bob Jones University, now infamous for its views on race and the Catholic Church, he answered critics, “But don’t judge my heart based upon giving a speech at a university.” On Paul O’Neill, the nominee for secretary of the treasury: “I look forward to having this good man by my side.” On Donald Rumsfeld, Bush’s choice to run the Department of Defense: “A good man, an honorable man.” And on Federal Reserve Chairman Alan Greenspan, following a breakfast meeting at which, according to Bush, “We had a very strong discussion about my confidence in his abilities,” he added, “I talked with a good man right here.” Bush’s fixation on the good hearts of those in his administration makes a certain amount of sense. He has made much of the role of Christianity in his life, and famously named Jesus Christ as the philosopher he admires most. It may well be that Bush’s preoccupation with the heart comes from his religious beliefs. So, then, what’s the word on heart vs. action? The Epistle of James in the New Testament addresses the question pretty directly: “What does it profit, my brethren, if a man says he has faith but has not works? … Show me your faith apart from your works, and I by my works will show you my faith … . For as the body apart from the spirit is dead, so faith apart from works is dead.” Or, to put it in modern terms: “Having a big heart doesn’t excuse a stupid ass,” according to Charles Curran, a professor of Christian ethics at Southern Methodist University, based in Bush’s very own Texas. (For the record, Curran was speaking generally, and not about any president-elect in particular.) THEY MEAN WELL As Curran explains, the reality of life is that neither one’s heart nor one’s actions are enough to make someone good. “In the long run, in one sense, intent or heart is the most important thing, but because we humans live in a physical world, we need both,” he says. “It’s the complexity of the human act as it affects other persons and institutions” that matters. And where does that leave Bush? He may have run for president as a “compassionate conservative” who advocates “faith-based” solutions to problems involving drugs and crime. But does he really want to judge people by their hearts alone? A quick foray into the world of criminal law might be instructive on this point. As all first-year law students learn, every crime has two parts: action and intent (or, as legal Latin phrases it, the actus reas and the mens rea). To be guilty, the defendant needs to have both committed the criminal act and had a criminal mind when he acted. Intent indeed matters. Attempted murder, even without a resulting homicide, is still a crime. But mainly criminal law focuses on actions — at least as a means of roughly gauging intent. William Stuntz, a professor of criminal law at Harvard Law School and a serious student of Christian thought, puts it so: “Christians ought to understand that the primary thing that we know about our own hearts is that they’re diseased, they’re sinful.” He continues: “This is the great wisdom of the classical common law of crimes. It placed much less emphasis on intent than on conduct. Intent is unknowable. People’s hearts are unknowable. Conduct is knowable.” CRIMES OF THE HEART But play out President-elect Bush’s reasoning for a moment and imagine a world where courts sit in judgment of people’s hearts alone. It’s not one that Bush would like. For starters, he’d have to rev up use of the pardon power, which he let molder in Texas. If a convict has repented in heart and soul so that he has purged the criminal impulse, what good does it do to punish him? Look to the four reasons for criminal penalties: the safety of society, retribution, deterrence, and rehabilitation. The first and the fourth goals are obviously not furthered by continuing to imprison (or execute) the truly repentant — a person who understands the error of his crime has already been rehabilitated and won’t commit a crime again. As for deterring other potential criminals, is it such a bad message to send that criminals who cleanse their souls will be freed if the cleansing is genuine? And if it comes down to retribution, well, what ever happened to Christian mercy? But Bush has said that, when deciding whether to commute death sentences, “My job is to ask two questions, sir. Is the person guilty of the crime? And did the person have full access to the courts of law?” If the answer to both is yes, Bush steps aside. There’s nothing in that formula about judging hearts. Even the heart of Karla Faye Tucker, the pickax murderer executed under Bush’s governance who went through a jailhouse conversion to devout Christianity — and who received support from Pat Robertson in her pleas for clemency — didn’t merit a look-see by Bush. Bush would also have to give wide berth to defendants’ use of the insanity defense. Why? An insane defendant, by definition, can hardly have the requisite criminal intent. And there would be vanishingly few defendants to stand trial in the first place. Because if you look only to people’s hearts, how do you get evidence of intent, which normally comes from actions? Bush would be left waiting for a very few to confess to their mens rea. (And since crazy people mainly would confess to crimes for which the government had no evidence, even those poor souls might be able to plead insanity.) Unless, of course, Bush wanted to hire Grand Inquisitors with thumbscrews — which might violate the first half of his compassionate conservatism credo. And last but not least, the game of hearts condemns Bush himself to a chain gang. He got off easy for that driving-while-intoxicated offense, presumably because no one got hurt. But that’s a mere act. Bush’s heart was that of a drunk driver capable of plowing through crowds of pedestrians. Why wait for him to go through with it? So it’s safe to assume that Bush would not want us to judge people solely by their hearts — or, at least, that he would not want us to judge people outside his prospective Cabinet by that standard. And he did leave himself an out. In one of his references to Ashcroft’s heart, Bush added, “… and his record.” So let’s look at it. Ashcroft has supported the death penalty, the war on drugs, strengthening the trade embargo on Cuba, and limiting welfare benefits for immigrants, while he has opposed abortion, gun control, affirmative action, funding renewable energy sources, increasing foreign aid, campaign finance reform, increasing the minimum wage, and gay rights. There’s the record; judge him accordingly. Maybe Bush can learn a lesson here from one of his other nominees. When he announced Roderick Paige as his pick for secretary of education, Paige said that he respects Bush because, with regard to education issues, the president-elect “didn’t just talk the talk. You walked the walk.” That makes Paige a man who judges people based not on intent, but on action. Meaning, at least, that his heart is in the right place. Evan P. Schultz is associate legal editor at Legal Times. His e-mail address is [email protected]

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