Bainbridge on Roberts, judging, and Catholicism

Over at my usual blogging home, "Mirror of Justice," Professor Steve Bainbridge has put up a long discussion of Roberts / Catholicism / judging / recusal / "religious test" debate.  It's one of the best I've yet seen.  If -- as several recent threads here on Prawfsblawg have suggested -- we're curious how blogging can connect with serious, careful argument, it strikes me that Bainbridge's latest is an example of how blog posts can "add value" to serious, and even scholarly, discussion.  Here's the conclusion:

In the end, however, I come down with Garvey and Coney - where a Catholic judge believes his participation in a particular case would constitute formal cooperation with evil, the judge should recuse himself. The possibility that a judge (or justice) might have to recuse himself in occasional cases, however, does not strike me as a legitimate reason to deny the judge a seat on the bench.

I said earlier that David's question was not the right one but was in the neighborhood of the right question. It should not be apparent what are the right questions. If I were a Senator, I would ask Judge Roberts the following questions:

1. Do you believe that a judge should recuse himself if his participation in a particular case would constitute formal cooperation with evil?
2. Would you recuse yourself under such circumstances?

I'm inclined to think that one should not ask Judge Roberts whether he believes reviewing death penalty cases would constitute formal cooperation with evil (or the dame re abortion etc.). Even hot button constitutional issues are often highly fact specific. It would be unfair and unworkable to ask a judge to prejudge every possible variant of every issue that might come up in a long career.

Rick