July 25, 2005


Skirmish Over a Query About Roberts's Faith (DAVID D. KIRKPATRICK, 7/26/05, NY Times)

Congressional Republicans warned Democrats on Monday not to make Judge John G. Roberts's Roman Catholic faith an issue in his confirmation hearings for a seat on the Supreme Court, reviving a politically potent theme from previous battles over judicial appointees.

The subject came up after reports about a meeting on Friday at which Senator Richard J. Durbin, Democrat of Illinois, is said to have asked Judge Roberts whether he had thought about potential conflicts between the imperatives of their shared Catholic faith and of the civil law. The discussion was described by two officials who spoke anonymously because the meeting was confidential and by a Republican senator who was briefed on their conversation.

Judge Roberts responded that his personal views would not color his judicial thinking, all three said, just as he has testified in the past.

An opinion-page article in The Los Angeles Times on Monday by Jonathan Turley, a George Washington University law professor, included an account of Mr. Durbin's question. Professor Turley cited unnamed sources saying that Judge Roberts had told Mr. Durbin he would recuse himself from cases involving abortion, the death penalty or other subjects where Catholic teaching and civil law can clash.

A spokesman for Mr. Durbin and Senator John Cornyn, Republican of Texas, who spoke to Judge Roberts on Monday about the meeting, said Professor Turley's account of a recusal statement was inaccurate.

But in an interview last night, Professor Turley said Mr. Durbin himself had described the conversation to him on Sunday morning, including the statement about recusal.

At the rate Senator Durbin is going, Alan Keyes may take another run in IL.

The faith of John Roberts (Jonathan Turley, July 25, 2005, LA Times)

Judge John G. Roberts Jr. has been called the stealth nominee for the Supreme Court — a nominee specifically selected because he has few public positions on controversial issues such as abortion. However, in a meeting last week, Roberts briefly lifted the carefully maintained curtain over his personal views. In so doing, he raised a question that could not only undermine the White House strategy for confirmation but could raise a question of his fitness to serve as the 109th Supreme Court justice.

The exchange occurred during one of Roberts' informal discussions with senators last week. According to two people who attended the meeting, Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).

Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.

Posted by Orrin Judd at July 25, 2005 11:44 PM

Apparently Justice Roberts said that he would recuse himself if the law required him to rule in a way such that the act of ruling would be considered by his church as the commission of an immoral act. That's quite a bit different from the mess of pottage of a summary that we see in the Times, but what can you expect from such a tabloid?

A bit more discussion here.

Posted by: John Thacker at July 26, 2005 12:27 AM

Now if we can get Eddie Haskell to agree to the same.....

Posted by: Sandy P at July 26, 2005 1:48 AM

Willingness to recuse himself from a case where he must rule against his conscience is an excellent reason to confirm him. He is a judge, not a politician, and this means he is a moral one.

That does not mean he wouldn't overturn Roe v Wade because it has no grounds in the constitution.

Posted by: Randall Voth at July 26, 2005 5:18 AM

His job will be to make decisions, based on law. I don't think he should accept the job if he is unwilling to perform its duties. What kind of "conscience" is it to accept the salary and refuse to do the job.

In the coming months he should refuse to speculate on hypothetical recusal senarios. Randall, all we are asking of any Judge is that he tell us what the law is (as applied to the particular facts of the case), not what he thinks it should be.

Posted by: h-man at July 26, 2005 7:03 AM

Agree with Hman and thank John Thacker for the clarification.

Being President is a position of greater responsibility, though fortunately not a lifetime office, and apparently the Democrats were willing to entrust it to JFK and JFK lite with Lieberman as backup.

And while I'm at it, why not limit the Justices tenure to the lifetime expectency of the 1790's.

Posted by: Genecis at July 26, 2005 7:28 AM

h-man, that is what he will do -- if he must judge according to law, but against conscience, he recuses himself. It is no different than recusing himself in a case involving his own family.

He is saying that he will never judge against the law or the constitution. This is a great thing and should be applauded. I don't believe that "liberal" judges would ever say such a thing. If a law goes against their "liberal" bias or predilections, they strike down the law, they don't recuse themselves. That is how Roe v Wade was decided.

The president is an elected official. He acts according to conscience and *makes* law.

A judge is different. No moral judge would say anything different than Roberts has said. He is exactly the kind of judge who will remain true to the constitution, even if it means recusing himself to do so.

Posted by: Randall Voth at July 26, 2005 8:00 AM


Because even back then it didn't stop a two-bit egocentric hack like John Marshall from being in office entirely too long.

Somehow, I don't think the 'John Roberts is a Catholic extremist' line is going to inure to the benefit of a party that has benefitted from Catholic animosity towards and fear of Evangelican Protestants for the last 3 decades.

Posted by: bart at July 26, 2005 8:18 AM

The Constitution can't be in conflict with morality.

Posted by: oj at July 26, 2005 8:51 AM

"Give to Rome what is Rome's, and give to God what is God's"

The Constitution is not the last word in morality, it wasn't supposed to be. Government is a necessary evil, it shouldn't be looked to to define morality.

This split loyalty question about Catholics has a rich lineage in American politics. Funny that people like Ted Kennedy would be trying to resurrect it, it was used against his brother.

Posted by: Robert Duquette at July 26, 2005 9:35 AM

"For our citizenship is in heaven; from whence also we look for the Saviour, the Lord Jesus Christ." (Php 3:20)

You have a higher opinion of the Constitution than some, Orrin. The only alternative is for Christians to stay out of politics, which would hurt the irreligious even more than the religious, I'm afraid.

Posted by: Randall Voth at July 26, 2005 9:52 AM


By its own terms the Constitution can not contravene Judeo-Christian morality.

Posted by: oj at July 26, 2005 9:58 AM

Alan Keyes? ROTFL. You talked him up in 2004 non-stop and he got walloped. He's a joke, not a contender.

Posted by: Brandon at July 26, 2005 12:16 PM

In the link I posted, Professor Althouse has some excerpts from a Justice Scalia speech where he attempts to outline the difference between what he believes would be the commission of an immoral act, and what would not be. For example, he offers that even if he believes abortion is wrong, it is not an immoral act to refuse to rule that the unborn are protected as "persons" under the 14th Amendment, and thus protected from abortion. Thus, he could and would refuse to vote to overturn a state law legalizing all abortions on demand.

He contrasts this with handing down a sentence of capital punishment, which he views as acting as part of the essential machinery of government and as commiting an act. In that case, he believes that someone who thinks that capital punishment is sinful would be right to recuse themself.

Posted by: John Thacker at July 26, 2005 12:57 PM

"By its own terms the Constitution cannot contravene Judeo-Christian morality."

Pray tell OJ, how is this so?

Posted by: Robert Duquette at July 26, 2005 1:56 PM

I hope he didn't say that. His personal or religious beliefs can't color his decisions.
He's there to rule on the law, not to judge it.

I can't see how he can be confirmed if that's what he really means.

Posted by: erp at July 26, 2005 4:22 PM

erp -- How can they color his decisions if he recuses himself?

oj -- Morality is one thing, conscience is another. This is the essence of the argument between Peter and Paul in the church at Jerusalem.

It is possible for a law not to contravene the constitution but cross one's conscience -- even if the law or the constitution is not immoral.

It may be rare, but recusing himself in that particular instance is a brave and honorable thing to do. It is the fundamental reason a man like Roberts will not "rule from the bench".

Posted by: Randall Voth at July 26, 2005 7:27 PM

If the law is not immoral then there's no problem.

Posted by: oj at July 26, 2005 7:33 PM


That's why saints are often crucified but will later judge the world (1 Co 6:2). Roberts is fortunate to be serving his nation under Bush rather than England under Elizabeth.

Posted by: Randall Voth at July 26, 2005 8:49 PM

I doubt he'll be crucified for striking down an immoral law.

Posted by: oj at July 26, 2005 9:19 PM

It's the job of a Supreme Court justice to make decisions, not to recuse himself. If Roberts can't separate his personal beliefs from his professional ability to decide on the issues brought before the court, he should have let the president know that, so he could have nominated someone else.

If this information gets out to the public, I think it will be a deal breaker.

Posted by: erp at July 27, 2005 8:35 AM