RE: The Faith Of John Roberts
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=1cset=true Brad ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _ Dont just search. Find. Check out the new MSN Search! http://search.msn.click-url.com/go/onm00200636ave/direct/01/ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The Faith Of John Roberts
Among the important sources for this discussion are John Kennedy's famous address to the Houston Ministerial Association- available online at the Kennedy library site- Marion Cuomo's' mid 1980's or early 1990's address at Notre Dame and Henry Hyde's response. There was also an important opinion by a Mormon federal judge who held high office in the Church who had before him a case about the validity of the enactment of the ERA which the Church had opposed. NOW had sought his recusal. He refused and wrote a good opinion.(AJCongress and less significantly the Carter DOJ both of which supported the ERA also opposed the motion to recuse.) Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Horwitz Sent: Tuesday, July 26, 2005 1:22 PM To: religionlaw@lists.ucla.edu Subject: RE: The Faith Of John Roberts 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
RE: The Faith Of John Roberts
What is the name of the book? Barnes and Noble has nothing by Tanhanaha. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sanford Levinson Sent: Tuesday, July 26, 2005 1:26 PM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: RE: The Faith Of John Roberts Judge Roberts said repeatedly that he would follow the rule of law, Mr. Shoemaker said. But, of course, one of the central teachings of the Roman Catholic Church, going back to St. Augustine is that that which is truly immoral or unjust is not law at all. The rule of law is a fatally ambiguous concept unless one identifies oneself as a strict positivist--the law is whatever a sovereign commands and morality is entirely and utterly irrelevant--or a natural law adherent, where immoral laws are simply not law at all. (Recall, e.g., King's Letter from the Birmingham Jail.) Again, I would recommend Brian Tahanaha's very good (and short) book on the subject. I also note, for what it is worth, that Scalia, who was forced, like all Catholic nominees, to declare that his primary loyalty as a judge was to the US Constitution, himself regularly invokes morality as one of the reasons he believes affirmative action to be unconstitutional. Now perhaps he's simply making a version of Philip Bobbitt's ethical argument, so that by immoral, Scalia simply means (contrary to any known fact about the American ethos), that we have traditionally not taken race into account in making political judgments; I think the more plausible account is that he deeply believes that it violates natural justice to take race into account, a far more tenable view, even if one ultimately rejects it. And, as suggested in Stuart Buck's post, remains mysterious to me why anyone who truly believes that there is a divine sovereign who issues ascertainable commands and/or makes it possible for us to discern what morality and justice mean would easily subordinate that understanding to the rule of men (and women) instantiated in popular sovereignty. As Carl Schmitt argued (and Kurt Godel recognized), popular sovereignty is just another name for triumph of the will, though the number of relevant wills is, presumably, at least that of a majority. This is why he believed that a constitution that takes rights seriously must entrench them against even the possibility of amendment, advice followed in the post-War German Constitution and the Constitution of India. It will be interesting to see what the Iraqis decide about entrenchment and amendment. So tell me, is it legitimate for a US Senator, upon hearing Judge Roberts commit himself, as he most certainly will, to being a faithful servant of the law, to ask him what he thinks of St. Augustine's and Thomas Aquinas's view of law. Perhaps Roberts has read Robert George's supple and nuanced book Making Men Moral, which endorses a pragmatic reading of Aquinas. Is it fair to ask Roberts about that? Or are all questions that relate to Catholic theology and jurisprudence off the table? As I've suggested earlier, would we be equally hostile to asking, say, Frank Michelman about his views of Rawls and Habermas with regard to the way that a judge should comport him/herself or Cass Sunstein about the relevance of Kahnmen and Twersky (or any other behavioral economists) to a judge construing statutes. The question remains whether it is remotely possible to have a serious public discussion (i.e., in Congress and the press, not on our listserv) in the United States about theology and politics. I am not optimistic. sandy ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The Faith Of John Roberts
My apologies! I misspelled the name: It's Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge 2004)) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern Sent: Tuesday, July 26, 2005 12:36 PM To: Law Religion issues for Law Academics Subject: RE: The Faith Of John Roberts What is the name of the book? Barnes and Noble has nothing by Tanhanaha. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sanford Levinson Sent: Tuesday, July 26, 2005 1:26 PM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: RE: The Faith Of John Roberts Judge Roberts said repeatedly that he would follow the rule of law, Mr. Shoemaker said. But, of course, one of the central teachings of the Roman Catholic Church, going back to St. Augustine is that that which is truly immoral or unjust is not law at all. The rule of law is a fatally ambiguous concept unless one identifies oneself as a strict positivist--the law is whatever a sovereign commands and morality is entirely and utterly irrelevant--or a natural law adherent, where immoral laws are simply not law at all. (Recall, e.g., King's Letter from the Birmingham Jail.) Again, I would recommend Brian Tahanaha's very good (and short) book on the subject. I also note, for what it is worth, that Scalia, who was forced, like all Catholic nominees, to declare that his primary loyalty as a judge was to the US Constitution, himself regularly invokes morality as one of the reasons he believes affirmative action to be unconstitutional. Now perhaps he's simply making a version of Philip Bobbitt's ethical argument, so that by immoral, Scalia simply means (contrary to any known fact about the American ethos), that we have traditionally not taken race into account in making political judgments; I think the more plausible account is that he deeply believes that it violates natural justice to take race into account, a far more tenable view, even if one ultimately rejects it. And, as suggested in Stuart Buck's post, remains mysterious to me why anyone who truly believes that there is a divine sovereign who issues ascertainable commands and/or makes it possible for us to discern what morality and justice mean would easily subordinate that understanding to the rule of men (and women) instantiated in popular sovereignty. As Carl Schmitt argued (and Kurt Godel recognized), popular sovereignty is just another name for triumph of the will, though the number of relevant wills is, presumably, at least that of a majority. This is why he believed that a constitution that takes rights seriously must entrench them against even the possibility of amendment, advice followed in the post-War German Constitution and the Constitution of India. It will be interesting to see what the Iraqis decide about entrenchment and amendment. So tell me, is it legitimate for a US Senator, upon hearing Judge Roberts commit himself, as he most certainly will, to being a faithful servant of the law, to ask him what he thinks of St. Augustine's and Thomas Aquinas's view of law. Perhaps Roberts has read Robert George's supple and nuanced book Making Men Moral, which endorses a pragmatic reading of Aquinas. Is it fair to ask Roberts about that? Or are all questions that relate to Catholic theology and jurisprudence off the table? As I've suggested earlier, would we be equally hostile to asking, say, Frank Michelman about his views of Rawls and Habermas with regard to the way that a judge should comport him/herself or Cass Sunstein about the relevance of Kahnmen and Twersky (or any other behavioral economists) to a judge construing statutes. The question remains whether it is remotely possible to have a serious public discussion (i.e., in Congress and the press, not on our listserv) in the United States about theology and politics. I am not optimistic. sandy ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send
RE: The Faith Of John Roberts
The story, that Judge Roberts said he would recuse himself from cases involving various issues, appears to be untrue. See http://www.nytimes.com/2005/07/26/politics/politicsspecial1/26roberts.html. An excerpt: "An opinion-page article in The Los Angeles Times on Monday by Jonathan Turley, a George Washington University law professor, included an account of Mr. Durbin's question. Professor Turley cited unnamed sources saying that Judge Roberts had told Mr. Durbin he would recuse himself from cases involving abortion, the death penalty or other subjects where Catholic teaching and civil law can clash. "A spokesman for Mr. Durbin and Senator John Cornyn, Republican of Texas, who spoke to Judge Roberts on Monday about the meeting, said Professor Turley's account of a recusal statement was inaccurate. "But in an interview last night, Professor Turley said Mr. Durbin himself had described the conversation to him on Sunday morning, including the statement about recusal. * * * "Mr. Durbin declined to discuss the issue on Monday. A spokesman, Joe Shoemaker, said, What Judge Roberts did say clearly and repeatedly was that he would follow the rule of law, and beyond that we are going to leave it to Judge Roberts to offer his views. Whatever Senator Durbin may have said to Professor Turley, the Senator's office now has backed away from the story. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Brad M Pardee [mailto:[EMAIL PROTECTED] Sent: Tuesday, July 26, 2005 8:24 AM To: religionlaw@lists.ucla.edu Subject: The Faith Of John Roberts 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=1cset=true Brad ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The Faith Of John Roberts
I am grateful to Mark Scarberry for his thoughtful and learned discussion. So the question is this: If Mark were a nominee for judicial office, would it be legitimate to ask him the kind of question that would elicit just this thoughtful and learned response. Incidentally, I don't really think the French fry case is an example of an immoral law. It might arguably have been unjust to apply it to the 12-year old, but I think it's best described as simple bureaucratic stupidity and mindless literalism. I would be far more disturbed, for example, if Roberts thought there was nothing problematic in the Supreme Court's decision some years ago that refused to allow a condemned prisoner to file an appeal because his lawyer was one day late in the filing. (The sins of the lawyer being cast onto the client, big time!) Since Roberts, I gather, represented a death penalty victim on a pro bono basis, perhaps he has at least some experience as to how the death penalty system really works and the difference it might make, shall we say, if one is represented by Hogan and Hartson. (Query, did Roberts ever go to a prison to talk with his client? If so, I wonder if that would make him the only member of the Court, assuming he is confirmed, to see the inside of a prison on something other than a grand tour given visiting dignitaries. Maybe David Souter visited a jail when he as AG of New Hampshire.) sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Tuesday, July 26, 2005 1:49 PM To: 'Law Religion issues for Law Academics' Subject: RE: The Faith Of John Roberts As John Finnis notes in *Natural Law and Natural Rights* (Clarendon Press, Oxford, 1980) (NLNR), Catholic natural law theory does not hold that an unjust law is not in any sense a law. Rather, an unjust law is not a law in the focal sense of law, and thus it does not embody the central case referenced by the concept of law. But it may of course be law in other, secondary senses. Finnis quotes Joseph Raz (who was himself summarizing Hans Kelsen) as saying inter alia that natural law adherents cannot say of a law that it is legally valid but morally wrong. If it is wrong and unjust, it is also invalid in the only sense of validity they recognize. NLNR 26. Finnis then says he knows of no philosopher who fits that description and gives references to other sections of the book in which he addresses the issue. Id. In chapter XII, which deals generally with the subject of unjust laws, he says that he know[s] of no theory of natural law in which that affirmation [that unjust laws are not laws], or anything like it, is more than a subordinate theorem. Id. at 351. Finnis notes in many circumstances there is reason to treat laws as valid within the legal system (intrasystemically) even if those laws may not be considered to be just. Whether Judge Roberts is a reader of Finnis or not, I think when he refers to following the rule of law he means that he will follow the law as enacted rather than substituting for it his view of what is just. That is precisely the point made by his decision (affirming a decision of a Carter or Clinton appointee district judge) in the french fry case. Of course, in a sufficiently extreme case, he might recuse himself or resign rather than enforce an unjust law; it's likely that all of us would have limits, were we judges, beyond which we too would recuse ourselves or resign. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Sanford Levinson [mailto:[EMAIL PROTECTED] Sent: Tuesday, July 26, 2005 10:26 AM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: RE: The Faith Of John Roberts Judge Roberts said repeatedly that he would follow the rule of law, Mr. Shoemaker said. But, of course, one of the central teachings of the Roman Catholic Church, going back to St. Augustine is that that which is truly immoral or unjust is not law at all. The rule of law is a fatally ambiguous concept unless one identifies oneself as a strict positivist--the law is whatever a sovereign commands and morality is entirely and utterly irrelevant--or a natural law adherent, where immoral laws are simply not law at all. (Recall, e.g., King's Letter from the Birmingham Jail.) Again, I would recommend Brian Tahanaha's very good (and short) book on the subject. I also note, for what it is worth, that Scalia, who was forced, like all Catholic nominees, to declare that his primary loyalty as a judge was to the US Constitution, himself regularly invokes morality as one of the reasons he believes affirmative action to be unconstitutional. Now perhaps he's simply making a version of Philip Bobbitt's ethical argument, so that by immoral, Scalia simply means (contrary to any known fact about the American ethos), that we have traditionally not taken race into account in making political judgments; I think the more plausible account
Re: The Faith Of John Roberts
The area of religion and law presents a challenge to the notion of rule of law. The phrase rule of law, like the term law itself, becomes increasing problematic the more rigorously one tries to define or otherwise delimit it. This is a problem philosophers always seem to have with law -- the essentially utilitarian nature of it and of the terms we use in it do not lend themselves to philosophical rigor. Rule of law in the international development community typically is used in contrast to either an anarchic situation or to a system of political and personal whim. It is a system that provides some greater regularity and permits one to plan and to rely on those plans with respect to the laws being applied. It does not refer to a system of law that has no ambiguities, no exceptions, no fuzzy areas, no difficult questions. It seems to me that the phrase rule of law is used in the US as yet another code word for whenever a judge interprets a law (including the Constitution) in a way the person does not like. The problem with the phrase in religious freedom discourse is that the law itself is so mushy and difficult to understand and apply as one drifts ever so slightly from the core meaning. All of the justices are in almost all cases applying the rule of law -- the meaning of the constitution as they understand it from whatever stance they may take toward it. In a few cases the court does engage in policy-making and rule-making -- unavoidably in my experience and understanding -- it is a Supreme Court we are talking about and a Constitution we are discussing. It is not a law like stop at stop signs. In Rosenberger two principles of law clashed. The dissent chose one set of principles (separation) the majority chose another set (fuzzy neutrality plus speech). Both were applying established rules of law. Both were in compliance with the dictate to adhere to the rule of law. There are only a handful of cases where the court has really stepped into open space with scant guidance from precendent -- but even there one finds some fidelity to the rule of law. Brown is premised on the 14th Amendment. Roe on privacy found in substantive due process. Bush v Gore is perhaps the most lawless decision, but even it is premised on necessity and dressed in rule-of-law dress. The 10 Commandment cases illustrate the problem nicely. Are any of the opinions not based upon a rule of law? Isn't the rule of law problem in them what happens when a Judge Moore defies the rules set by the courts? These cases are decided on various principles -- not on the basis of clearly set boundaries created by hard-edged rules. Personal experience and opinion and beliefs enter into them -- unavoidable. But that does not make them outside the rule of law. I suppose Roberts to simply mean that he will try to follow precedent and text where it can be done. But I'm sure we will see from him, as we see from EVERY justice that deciding cases is a lot harder and involves a lot more than can be captured in any single catch-phrase. Especially in the area of freedom of religion. Steve ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
