« Democrats for Castration? | Main | Terrorism, Deterrence, and Searching on the Subway »

Monday, July 25, 2005

Turley on Roberts, the Church, and Abortion

Following up on my last post, note that GW law professor Jonathan Turley has this op-ed in the LA Times today.  He writes that Sen. Durbin asked nominee Roberts last week what he would do if the law required a ruling that the Church considers immoral; Roberts "appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself."  Turley concludes that the answer was "wrong," because a judge's religious views should not enter into his interpretation of the Constitution or laws of the United States, and suggests that this fairly opens the door to questioning.  He is unclear on whether Roberts must answer questions about his faith, or the relationship between his faith and certain hot-button legal issues, or about the issues themselves.

In fairness to Roberts, it should be noted that it is odd for Turley to say that Roberts' answer was "wrong" because "[a] judge's personal religious views should have no role in the interpretation of the laws."  Roberts was saying he would probably recuse himself precisely to ensure that his personal religious views would not affect his interpretation of the law -- or, and this is a different matter, to ensure that he would not create the appearance of having been improperly influenced by those views.  But it is valid -- or at least, conservatives who questioned Alberto Gonzalez as a nominee on this basis have already ceded the legitimacy of the question -- to ask whether a nominee would be faced with recusal too often or in cases too pressing to be decided by a bench of eight.

My own view, given my earlier post, is that Turley has not made the case for asking Roberts about his religious views.  Again, there is no constitutional barrier to doing so, as I understand it; but it would be better still simply to ask Roberts whether he is in a position to interpret the Constitution and/or follow precedent on these issues, wherever the answer may take him, or to ask him directly about his substantive legal views on these issues.  As I've also said, he is not obliged to answer these questions, and the Senate is not obliged to vote for him even if he does.  One last note: Turley is reporting this discussion based on two anonymous individuals who allegedly were present during the meeting.  I don't know whether Roberts and/or Durbin expected that they were speaking confidentially, but this is a lousy way to tee up an issue for the hearings on the grounds that Roberts himself has now opened the door to these questions.  Roberts spoke sincerely, I'm sure, but off the cuff.  I would have little problem with Durbin firing these staffers, if their identities were ferreted out (and if neither of them are Durbin himself).   

Posted by Paul Horwitz on July 25, 2005 at 01:39 PM in Current Affairs, Law and Politics, Religion | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Turley on Roberts, the Church, and Abortion:


Durbin's office is retracting the story.

Posted by: MJ | Jul 26, 2005 7:57:03 AM

I imagine that these questions have always been asked about, if not of, every nominee sub rosa. We would not want, for example, someone who believes that cliterectomies are a valid religious practice. Otherwise, I see and agree with your position.

Posted by: nk | Jul 25, 2005 8:25:08 PM

I don't see why this cannot be asked of someone like Roberts who describes himself as devout, or allows others to describe him in that way without clarifying that the description is not accurate. I suppose it is true that Roberts could refuse to answer, but he can refuse to answer any question put to him, and senators can refuse to vote for him if they don't like his answer *or* if he does not answer.

Roberts' particular religion is irrelevant, though a religion such as catholocism or episcopalianism where one person decides what is right or wrong and you can be thrown out/excomunicated for advocating the wrong view raises particular concerns. From a confirmation perpective, the question is whether outside influences will affect his judgment or force him to recuse himself in certain cases.

The same concern is not there from an agnostic or an athiest, because there is no similar danger they can be punished/shunned/etc. after taking a position at odds with athiesm or agnosticism. Nor is it there from someone who is religious but not devout, since they are unlikely to be tormented by having to rule against the interests of their church.

Posted by: Jon | Jul 25, 2005 5:37:39 PM

If the criteria of Justice Robert's religion is a factor, then we must also consider factors which may affect other potential candidates. Should we find fault with a candidate based on active participation in organized religion, then we must also ask each candidate if their agnosticism, atheism or apathy to religion may affect their views. Go too far and we may find no one qualified to be a judge.

Posted by: TomH | Jul 25, 2005 4:14:47 PM

The comments to this entry are closed.