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.
It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer. In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States. A judge’s personal religious views should have no role in the interpretation of the laws. (To his credit, Roberts did not say that his faith would control in such a case).
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.”
Roberts is known to be an honest and straightforward person. His answer seems to be a frank effort to deal with a deep-seated conflict of faith and public duties. As a government attorney, he was a coauthor of a brief that argued that Roe vs. Wade should be overturned. Yet later, in his appellate court confirmation hearings, Roberts was asked specifically whether he could apply Roe vs. Wade and he stated that he could. Now, as he moves toward a job in which he could ultimately be the deciding vote to narrow, preserve or overturn the doctrine, it could be a materially different moral choice for a devout jurist.
Unless Roberts denies the statement or somehow neutralizes it, it could seriously undermine the strategy of the White House for the confirmation hearings. For years, Roberts has been carefully groomed for greater things, 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.
Now, however, Roberts may have opened the door to the very questions that the White House sought to avoid with his nomination. If he would have to recuse himself before ruling contrary to his faith, the Senate is entitled to ask specifically how he would handle obvious conflicts on issues such as abortion and the death penalty.
With the Roberts statement, the masterful “un-hearings” that the Bush administration hoped to have, in which nominees are not required to answer specific questions about their judicial views, would become particularly awkward.
This is not a question driven by ideology. I favor some of the conservative changes that Roberts is expected to bring in doctrine, and I believe that he has excellent qualifications for the position. I also believe that the president is entitled to such a conservative nominee.
The question of recusal raised with Durbin reflects a serious and important debate occurring within the Catholic community, in which I also was raised. It is the classic Sir Thomas More conflict of trying to serve both God and king. However, these are questions not just for a nominee to ponder but for senators.
None of this means that Roberts is unfit due to his faith. But in the end, the Senate is left a question that seems to grow each day: Who is John Roberts? The burden may now have shifted to the White House to fully answer this question.
--- START OF EDITOR’S NOTE ---
*--* Los Angeles Times Wednesday July 27, 2005 Home Edition California Part B Page 13 Editorial Pages Desk 6 inches; 205 words *--*
On Monday’s Op-Ed page, Jonathan Turley, a professor of law at George Washington University, wrote that at a meeting between Supreme Court nominee John G. Roberts Jr. and Sen. Richard Durbin (D-Ill.), Durbin had asked Roberts what he would do if the law required a ruling that conflicted with his Catholic faith.
Roberts responded, according to Turley, that he might have to recuse himself in such cases. Turley said he heard about the conversation from “two people who attended the meeting.”
Tuesday, Durbin’s office said the story was inaccurate.
Aides acknowledged that a question about faith and public policy had been asked, and that Roberts had discussed recusals -- but they said that the recusal answer wasn’t in response to the question about faith.
Turley, however, says it was Durbin who gave him the original information in an on-the-record conversation. Turley says he then confirmed the substance of that conversation with another person who had been at the meeting.
Durbin’s office understood that Turley was writing the article and expressed no concern about its accuracy when he explained exactly what he was writing, according to Turley.
He says that he has notes of each of those conversations, and that he stands by what he wrote.
--- END EDITOR’S NOTE ---