Strengthening Constitutional Self-Government

No Left Turns

More on Roberts’s Catholicism

Jonathan Turley reports on a conversation between John Roberts and Richard Durbin. Asked what he would do if the law required that he rule in a way that the Roman Catholic Church considers immoral, Roberts apparently (after a long pause) said that he would have to recuse himself.

Here’s a little bit of Turley:

Roberts may insist that he was merely discussing the subject theoretically in an informal setting, and that he doesn’t anticipate recusing himself on a regular basis. But it’s not a subject that can be ignored; if he were to recuse himself on such issues as abortion and the death penalty, it would raise the specter of an evenly split Supreme Court on some of the nation’s most important cases.

Roberts could now face difficult questions of fitness raised not only by the Senate but by his possible colleague, Justice Antonin Scalia, one of the most conservative members of the court (and a devout Catholic). Last year, Scalia chastised Catholic judges who balk at imposing the death penalty — another immoral act according to the church: "The choice for a judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty."

Of course, Turley seems to assume (with respect to abortion at least) that Roberts’s duty as a judge might be inconsistent with his duty as a Catholic, which isn’t altogether clear, given the narrowness of the questions with which he’s likely to be presented, the
role of prudence in Roman Catholic moral thinking, and some of the considerations advanced in this post, as well as others (like this one) on the same site.

Turley also describes Roberts and his colleagues, quite misleadingly, in this way:

[He is] one of a new generation of post-Bork nominees, young conservatives who have been virtually raised on a hydroponic farm for flawless conservative fruit. They learned to confine their advocacy to legal briefs so that their true views are only known to the White House and to God.

I find it passing strange that other potential Supreme Court nominees (such as all those
apparently interviewed for this slot), as well as someone like Michael McConnell, weren’t raised on the same farm. Of course, if the first President Bush had had his way, Roberts would by now have had a long record of opinions, as would a number of the current President’s appointees. In short, Turley’s characterization of the Republican stealth strategy is so far from accurate that one wonders what non-partisan reason he could have had for offering it.

Hat tips: Powerline and Southern Appeal.

Update: Nathan Forrester has more.

Update #2 Michael DeBow, a card-carrying member of the Federalist Society, had this to say in an email:

Wasn’t the "hydroponic farm" route entirely predictable after Bork’s treatment? And isn’t it remarkable that an entire shadow legal academy has to exist, outside the leftist bastion of "mainstream" legal education, in order for the traditional view of law to be preserved and transmitted? If Turley were interested in the substance of the matter, either of these points would have been more important to make than the cheap shot he took.

As someone who arrived in the Washington hothouse just a few years after Roberts, clerked for Ken Starr, and worked in the Reagan Administration, Mike’s views ought to carry some weight. I guess he’s given up his dream of sitting on the Supreme Court, however. Too much "extremism" on his resume.

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