Jonathan Turley in the LA Times has picked up on something that, if true [see the Updates below for more on that], does actually call into question whether John Roberts can effectively serve as a Supreme Court Justice – or, really, as a judge of any court.
According to sources present in Roberts’ courtesy call chit-chat with Sen. Dick Durbin (D-Ill.), Durbin asked what Roberts would do if the law called for a ruling that, according to the dictates of Roberts’ faith, was immoral.
Let’s pause for a moment and note that the "right" answer, of course, is: "Well, Senator, matters of faith are personal and quite distinct from my duties as a judge. Of course I would vote to uphold the law regardless of the Church’s view on a particular moral question. Part of being a good judge is being able to recognize that the law sometimes requires a result that may run contrary to the judge’s personal beliefs, and to rule accordingly in those instances."
Roberts, however, took quite a different approach. His answer: he would have to recuse himself.
Whoa – stop the presses. If he’s serious about that, it seems to mean that Roberts would have to recuse himself:
- every time the law demanded that the death penalty be imposed.
- every time the law demanded that an abortion restriction be struck down.
- every time the law demanded that a sodomy law be struck down.
- every time the law demanded that a restriction on embryonic stem-cell research be invalidated.
I could go on, but the point is clear enough. The Catholic Church, of which Roberts is reportedly a devout member, has taken strong positions on a lot of issues that regularly come before the Supreme Court. If Roberts cannot participate in those cases, he simply cannot do the job for which he has been nominated.
This development should seriously trouble those on the right as well as the left – no one wants a bunch of 4-4 votes, with Justice Roberts not participating, on these issues. Turley notes that Justice Scalia has taken the view that "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," and it’s hard to argue with that.
Finally, the Senate really has something to ask Roberts about!
Hat tip: DavidNYC at dKos.
UPDATE: Scott McLellan was asked about this at the White House daily briefing, but, predictably, punted.
FURTHER UPDATE: Reuters is now reporting that a spokesperson for Sen. Durbin has said that Turley’s account of their conversation is wrong. So this may be a big "never mind." But see below.
FURTHER FURTHER UPDATE: According to the NYT, Turley is sticking to his story and claims that it’s Durbin himself who relayed the conversation. Stay tuned.
I totally disagree with you that people who think that the death penalty is immoral must resign. If you think mandatory minimum sentencing is immoral, do you have to resign? No, you follow the law, but perhaps you speak out on the idiocy of the sentencing guidelines.It’s entirely possible that Roberts believes that constitutional interpretation aligns with Catholic doctrine. Scalia has said that the papal prohibition against capital punishment is some sort of lower order thing that doesn’t count as much as the anti-abortion one or something. So, he’s not violating his Catholicism.The best comment I saw was over at unfogged.Lizard Breath writes, “The interesting thing is that he didn’t say he’d recuse himself if the case was strongly affected by his beliefs — that is, if one of the options were against Catholic doctrine. He only said he’d recuse himself if the law required him to decide against Catholic doctrine. So if he thinks, to pick a completely random example, that there is no constitional right to abortion, no recusal because the law and his conscience are aligned. It’s only if he thinks there is a right to abortion that he has to recuse himself.”
abby brings up a troubling point. Hopefully there’ll be clarification.
Abby: I’m not saying that a judge should resign simply because he/she thinks the death penalty is immoral, and Scalia isn’t either (though his quote is ambiguous out of context). What Scalia meant was that if a judge thinks the death penalty is immoral and therefore would never allow it to be imposed, the judge should resign. The point is that the judge’s personal beliefs shouldn’t dictate outcomes, nor should they require recusal. A judge’s job is to decide cases according to law. Recusals are appropriate in those cases when there’s a conflict of interest, but I cannot ever recall hearing that a judge recused from a case because the outcome would have conflicted with the judge’s personal beliefs. It’s really quite an extraordinary thing that Roberts supposedly said. It will be most interesting to see if he sticks to it.