I agree with Stuart's general point -- and, even before the latest apparent
disavowal, was disturbed that this issue might be teed up (for Turley argued
that Roberts' answer effectively legitimized questions on the subject at the
confirmation hearings) by a report, taken from two anonymous sources, of a
semi-private conversation. I've written on this over at the Prawsfblawg web
site. It seems to me that Turley's original piece got it almost exactly
backwards, for the reasons Stuart suggests: Roberts was saying that he would
recuse himself before he would let his personal views (whether religious or
otherwise) color his rulings. I happen to believe Senators may question a
nominee on the subject, although I think there are far more productive ways
to go about asking these questions; but it seems to me Turley's handling of
the issue was clumsy at least.
But note that Turley might still, if the original statement had been
accurate, have raised a valid concern: whether Roberts would ultimately be
required to recuse himself in some of the more significant constitutional
cases before the Court. Recall that an analogous concern was raised by some
scattered and mostly conservative writers about the possible nomination of
Attorney General Gonzales.
Paul Horwitz
Associate Professor of Law
Southwestern University School of Law
From: "Stuart BUCK" <[EMAIL PROTECTED]>
Reply-To: [EMAIL PROTECTED], Law & Religion issues for Law
Academics <religionlaw@lists.ucla.edu>
To: religionlaw@lists.ucla.edu
Subject: RE: "The Faith Of John Roberts"
Date: Tue, 26 Jul 2005 11:56:56 -0500
For what it's worth:
1. Senator Durbin's office (whose interview with Roberts led to the
original report) now disputes that the original report was accurate:
http://washingtontimes.com/national/20050726-121131-2535r.htm
Jonathan Turley's column is not accurate," Durbin press secretary Joe
Shoemaker said, adding that his boss never asked that question and Judge
Roberts never said he would recuse himself in such a case.
"Judge Roberts said repeatedly that he would follow the rule of law,"
Mr. Shoemaker said.
2. What's supposed to be so bad about the originally reported answer of
Roberts, anyway? According to the original article, "Roberts was asked by
Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling
that his church considers immoral. . . . 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."
The first thing to note is that Roberts did not say (as Turley then
suggested) that his personal religious views would color how he interpreted
the laws. Far from saying that he would let his religious views override
the law, he said (reportedly, in an account that may be inaccurate) that he
might recuse himself before issuing a ruling that he considered immoral.
Well, anyone might have philosophical or ideological reasons -- not merely
religious reasons -- to believe that the "law" requires a ruling that is
"immoral." (If I recall, Sandy Levinson's book on "Constitutional
Tragedies" contained a number of examples.) So what are judges supposed to
do in such situations? Should they say, "What I think is immoral is
completely irrelevant. If the law requires me to return a fugitive slave
to his master, for example, the morality of the situation doesn't matter to
me"?
Is that, as a general matter, the way that judges should think of
themselves and their roles? Isn't recusal at least an honorable option in
such instances?
Best,
Stuart Buck
From: Brad M Pardee <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu>
To: religionlaw@lists.ucla.edu
Subject: "The Faith Of John Roberts"
Date: Tue, 26 Jul 2005 10:23:50 -0500
Interesting article in the LA Times about how John Roberts would handle a
situation where the law requires him to issue a judgment that violates the
teachings of his faith. If their account of the conversation is true (and
we all know the mainstream media ALWAYS gets its facts straight before
talking about faithful Christians, right? *rolls eyes*), then their
concern is a valid one.
http://www.latimes.com/news/printedition/opinion/la-oe-turley25jul25,1,3397898.story?ctrack=1&cset=true
Brad
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