Strengthening Constitutional Self-Government

No Left Turns

Curiouser and curiouser

According to this article, Richard Durbin denies the incident discussed here. His denial prompted Jonathan Turley to claim that Durbin was in fact his source. Who’s not telling the truth?

Today’s NYT has more, including this nugget:

Mr. Cornyn called Professor Turley’s account of the discussion "troubling, if true." In his own meeting with Judge Roberts on Monday, Mr. Cornyn recounted, "I said, ’I hate to see somebody going down this road because it really smacks of a religious test for public service.’ "

He added, "I said, ’I hate bringing this up, but since someone else already has and I know it is going to come up, is there anything about your faith or religious views that would prevent you from deciding issues like the death penalty of abortion or the like?’ "

"Absolutely not," Mr. Cornyn recalled Judge Roberts replying.

Mr. Durbin declined to discuss the issue on Monday. A spokesman, Joe Shoemaker, said, "What Judge Roberts did say clearly and repeatedly was that he would follow the rule of law, and beyond that we are going to leave it to Judge Roberts to offer his views."

Of course, the Times does manage to misstate Turley’s contention:

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.

Here, once again, is Turley:

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.

Even if it’s true that this was the question, and even if Roberts answered by saying that he would recuse himself if could not in good conscience follow the law (both Durbin and Cornyn deny that this is Roberts’s position), the Times got it wrong. No one has claimed, as the Times implies, that Roberts said he would recuse himself on every issue where the Catholic Church has a teaching that might be at odds with (someone’s understanding of) what the law requires or permits. The Times’s shorthand characterization of his answer makes it seem as if he wouldn’t touch any of these vexed issues at all. At most (and let me emphasize that this characterization is controverted), he has said that he couldn’t rule in a way that contradicted his conscience, and so would recuse himself. The Times makes it seem as if any time a matter on which the Catholic Church had a position came up, Roberts would back out. In other words, it construes his position in such a way as to suggest that serious religious believers would have a problem interpreting the law, a position that is at best a vast oversimplification (for reasons I offered in yesterday’s post) and at worst evidence of anti-religious animus.

Update: Win Myers has more here.

Update #2: Paul Mirengoff and Hugh Hewitt think Durbin tried to plant a story through Turley, only to have to back off when Turley actually quoted him. Hewitt’s advice to Roberts: always have a witness when you talk to Democrats.

Final Update: The estimable Jon Schaff has more over at South Dakota Politics, a blog to which he contributes when he’s not shooting prairie dogs.

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