What Could He Rule On?

Jeffrey Dubner at Tapped picks up on a remarkable exchange between Bush Supreme Court nominee John Roberts and Sen. Dick Durbin. In this world of bottomless political cynicism and immaculately careful scripting, truly surprising moments are hard to come by... but I think this counts:

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. (Emphasis added.)

As Jeff observes:

He'd only have to recuse himself from abortion and gay-rights cases ... and maybe the death penalty ... and perhaps pornography cases ... and possibly questions of church-state separation ... and, I suppose, poverty and social justice issues ... and then there's the moral acceptability of war ...

In other words, not quite everything, but a hell of a lot. I can't wait to see the inevitable "clarification" on this one.

•  John Roberts for...

  ... Press Secretary!

  by crazymoloch on Mon Jul 25, 2005 at 12:51:58 PM PDT

•  A conservative justice who had to recuse himself

  a lot on those sorts of issues might not be such a bad thing, considering the alternatives (i.e., who else Bush might pick).

  by lysias on Mon Jul 25, 2005 at 12:53:00 PM PDT

  •  Of course he's not going....

    .... to recuse himself! What's the point of putting an empty robe on the SC? If he's (Roberts) going to sit out the tough fights, Bush would have rather nominated a moderate.

    by crazymoloch on Mon Jul 25, 2005 at 12:55:25 PM PDT

    •  Yes, he is refusing..

      to answer Durbin's question.

      As he will refuse to answer as many questions as possible.  The whole game plan for this guy is to get him through without knowing anything about him.  Though I suspect they are hiding from the Rightwingers, rather than from the left.  Having said that, however, it can't hurt Democrats to grill him as much as possible.

      by David in Burbank on Mon Jul 25, 2005 at 01:09:34 PM PDT

      •  The funny thing is

        
        that's exactly what we said about David Souter.

        by admiralh on Mon Jul 25, 2005 at 02:04:06 PM PDT

        •  Not Me, I wasn't paying attention then

          by David in Burbank on Mon Jul 25, 2005 at 04:04:12 PM PDT

    •  I thought he said that he would not

      let his personal opinions interfere with following the rule of law.  This admission is jaw-dropping and, frankly, outrageous.  For any judge to say that he would have to recuse himself or herself on the basis of a personal (RELIGIOUS) conflict is shocking.  The judge who decided the Terri Schiavo case in Florida is allegedly a conservative christian and yet he never recused himself.  He PUT ASIDE his personal views.  THAT IS WHAT A JUDGE DOES!!!

      by fightorleave on Mon Jul 25, 2005 at 04:34:19 PM PDT

      •  jaw dropping and worth pursuing

        I know its all supposed to be politics and whether Democrats will "look bad" for pressuring this man but we know that last year some of the Catholic hierarchy in the US brought forward the possibility of excommunicating or refusing communion to Catholic officeholders who supported abortion rights.  And now theres a new pope who is thought to be more in favor of making demands on Catholic politicians than the last pope.  

        The country has a right to know in no uncertain terms whether John Roberts will follow the demands of his church or the Constitution.  

        by Lois on Tue Jul 26, 2005 at 05:14:43 AM PDT

  •  Very true

    At least he realizes what a conflict of interest is,  and that it creates a bias, which is more than I can say for some justices.

    by mmacdDE on Mon Jul 25, 2005 at 12:56:03 PM PDT

  •  It'd deadlock the court though

    I'll leave it to an actual lawyer/constitutional scholar to chime in on what happens in that scenario, but if there were a case that involved abortion rights we could very easily end up with a situation that had Souter, Ginsberg, Bryer and Stevens ruling one way and Kennedy, Scalia, Rehnquist and Thomas voting the other.

    I'm going to assume that a deadlock would be better than the 5 - 4, "it's a child not a choice!" ruling we'd get otherwise, but I'd still rather have an actual moderate sitting in the spot and get a 5 - 4 in our favor.

    by tomaxxamot on Mon Jul 25, 2005 at 01:11:17 PM PDT

    •  IIRC

      4-4 affirms the judgment of the appellate court. Which would mean, in a 4-4 scenario deciding on cert would be the important decision, ie. which circuit the 9th or the 5th.

      Kennedy recognizes the precedential value of Roe, so it would be 5-3. I don't recall where he stands on other abortion regs though.

      by Jorge McJunk on Mon Jul 25, 2005 at 01:16:42 PM PDT

      •  4-4 has no precedential effect.

        It would just leave undisturbed the ruling of the court below, one of the federal circuit courts of appeal.  Which would mean that that court's decision stands, but only with precedential effect within that circuit.  Other federal circuit courts of appeal remain free to disagree.

        Which is precisely the same effect that a denial of cert (i.e., the Supreme Court's declining to take a case) has.

        by lysias on Mon Jul 25, 2005 at 01:37:50 PM PDT

  •  But regardless...

    ... he obviously won't have a problem with casting votes on cases in which he thinks the law requires a result that he considers "morally proper."

    The sort of serial recusing that he's proposing to do is going to up the importance of Circuit appointments.  If his participation in a case would be determinative (i.e. a 4-4 evenly-divided court SCOTUS) and he recuses himself, the lower court determination stands.  And if the Circuits are packed with wingnuts like Owens and Brown, their rulings will remain law.

    Like we need 30 years of that dithering.

    by gsbadj on Mon Jul 25, 2005 at 01:19:33 PM PDT

•  Election outcomes

  I believe he'd still be allowed to rule on those.

  by lemuel on Mon Jul 25, 2005 at 12:54:05 PM PDT

  •  But Not...

    ...bingo.  He's have to recuse himself on that.</lapsed Catholic>

    by DHinMI on Mon Jul 25, 2005 at 01:02:42 PM PDT

•  the fears of Kennedy voters

  realized, 50 years later. <snark>

  by AnnArborBlue on Mon Jul 25, 2005 at 12:54:08 PM PDT

  •  Intentional or Not...

    ...that's a double entedre.

    by DHinMI on Mon Jul 25, 2005 at 01:03:23 PM PDT

    •  sigh

      I hate to admit this, but you just went like 6 miles over my head. I'm gonna feel stupid as hell when you explain it to me too.

      by AnnArborBlue on Mon Jul 25, 2005 at 01:07:30 PM PDT

      •  Anthony Kennedy

        Hasn't turned out the way a lot of conservative Catholics thought their fellow Catholic would.  

        by DHinMI on Mon Jul 25, 2005 at 01:08:56 PM PDT

        •  yeah I never would have gotten that

          it's nice to see I'm much more clever than I thought I was though. I thought I was just making one bad joke. Turns out I was making two bad jokes. Thank you for showing the previously unknown depths of my brilliance.

          by AnnArborBlue on Mon Jul 25, 2005 at 01:10:24 PM PDT

      •  I think

        he's saying that it could also apply to Bush -- a President who seems strongly influenced by his religious beliefs.

        by lemuel on Mon Jul 25, 2005 at 01:09:30 PM PDT

  •  Give it a rest.

    Kennedy did not offer to sit out issues where the Catholic Church positions conflicted with the national interest.  If he had worries about his qualifications for president would have been well-founded.

    Roberts is no John Kennedy, even if his family dresses like Kennedy's.
    

    by Thistime on Mon Jul 25, 2005 at 01:22:24 PM PDT

    •  whoa

      it was a joke, hence the snark tag.

      by AnnArborBlue on Mon Jul 25, 2005 at 01:26:26 PM PDT

•  Kind of sad

  If we can't ask a Supreme Court justice for a legal opinion on something because it offends his/her religious sensibilities...well, that person shouldn't really be there, should they?  Each justice should be able to look at any issue head-on and make a ruling based on the constitution and precedence (not a lawyer myself, but I think that's a correct assumption), and leave their own personal squeamishness at home.

  If you can't manage that, take yourself out of the running.

  by sirenbrian on Mon Jul 25, 2005 at 12:54:15 PM PDT

  •  Damn right

    it's basic unprofessionalism to refuse to put aside his religious views. It's probably dishonest as well; I can't believe he would recuse himself every time a case was of interest to the Catholic Church.

    by smintheus on Mon Jul 25, 2005 at 01:01:54 PM PDT

    •  As a former lawyer...

      .. and a former clerk, I know that the oath that judges take is to uphold the laws and Constitution.

      If you can't uphold the laws and Constitution because of religious beliefs, well, I can respect a judge's honesty in admitting it as a problem.

      But you shouldn't take the oath and the job in the first place if you know it going in.  

      Your job is to rule on cases.  Only a moral coward sits out all cases except for the ones that are personally easy to decide.

      by gsbadj on Mon Jul 25, 2005 at 01:29:04 PM PDT

  •  GWB: an official who didn't abuse his office

    ... to promote his particular religion clearly lacked Moral Curge.

    It was a feature of his campaign against Kerry, who said he'd uphold the Constitution rather than use the presidency to turn the country Catholic.

    Imagine that!

    by Peanut on Mon Jul 25, 2005 at 01:04:20 PM PDT

  •  I guess you haven't been watching too closely

    the past 5 years. Roberts is being put in place in order to create a majority on the SC to rule that the United States was indeed founded as a Christian nation and that ALL laws created by man shall take a back seat to God's law (as interpreted by the Republican party of course). At that point he will not have to recuse himself of anything...welcome to one party rule. Keep believing you live in a democracy.

    by Central Scrutinizer on Mon Jul 25, 2005 at 01:05:18 PM PDT

•  There's certainly a strong foundation

  for challenge based on this exchange. Will the talking heads engage the discussion? Will elected Dems highlight the significance of this remark? Can we here in the blogosphere flog this issue into unignorable prominence?

  What's the term? "Blogstorm"?

  by sbj on Mon Jul 25, 2005 at 12:55:13 PM PDT

  •  Actually, that's only what it starts as

    'shitstorm' is where it winds up, if we're lucky. ;-)

    by mmacdDE on Mon Jul 25, 2005 at 12:57:04 PM PDT

•  What's scary

  on this is if the existence of church dictates on such topics is sufficient and complete justification for his rulings, then whatever his insights, reasoning, knowledge about constitutional issues may be, brilliant as he may be in that regard, all could have little bearing on how he will actually vote as a judge or on what kind of precedent-setting opinions he will generate or sign on to.

  He may have real bona fides as a judge/scholar and yet these could become irrelevant to the effect he has on jurisprudence, if this is truly how his decision making works in the final analysis.

  Scary
  

  by jimpol on Mon Jul 25, 2005 at 12:57:07 PM PDT

•  So much for original intent

  Is this the escape hatch to strict constructionism?  Follow the precise intentions of the Founders...unless it conflicts with the teaching of your church?  I'm pretty sure the Founders never intended the Pope to be the supreme authority over the Constitution.

  by space on Mon Jul 25, 2005 at 12:57:51 PM PDT

  •  But ...

    Since the Founders were Inspired by God, there can be no conflict between the Constitution and Scripture.  A lot of them really believe this.

    by Bob Love on Mon Jul 25, 2005 at 01:48:43 PM PDT

•  They don't care

  This appointment isn't about abortion or the death penalty or any of that stuff.  Roberts might have views on those subjects, but social issues are irrelevant to this appointee and his appointor.

  John Roberts is a corporate appointment.  He is being put in because he'll be loyal to business interests over any other interests.  If it turns out its in corporate America's interests to have free dope and abortions for all, then Roberts will rule for free dope and abortions for all.

  by nightsweat on Mon Jul 25, 2005 at 12:57:55 PM PDT

  •  Now, THAT makes sense!

    Don't forget that if Haliburton can get the prison contract they will outlaw the death penalty so that they can keep them on their books.  

    Seriously, though, I think you are on the right track here.

    by stas61690 on Mon Jul 25, 2005 at 03:04:52 PM PDT

•  Just wondering

  Roberts is a devout Catholic.  Is there any evidence that he is Opus Dei, like the former FBI Director and traitor/spy Robert Hanson?

  by calipygian on Mon Jul 25, 2005 at 12:58:13 PM PDT

  •  Im not saying

    that Robert Hanson is the former FBI director.  I seem to recall that when he was active as a traitor, he was attending the same church as the then FBI Director whose name slips my mind right about now.  

    by calipygian on Mon Jul 25, 2005 at 12:59:28 PM PDT

  •  So far none

    They mentioned what parish he and his family attend on NPR this morning -- Little Flower in Bethesda, MD.  I haven't heard of that parish being a hotbed of Opus Dei -- most of the prominent Opus Dei types in DC have gone to St. Catherine of Sienna in Great Falls, VA -- that's the parish for Scalia, Freich and that FBI traitor whose name I've already forgotten.

    by akeitz on Mon Jul 25, 2005 at 01:23:27 PM PDT

•  There's a danger in going down this road

  By focusing on this remark, one could insinuate that any devout Catholic would be "ruled by Rome" -- the age old criticism of Catholic candidates for office from the beginnings of this country up until very recently. As such, I don't think that would be productive for the Democrats to harp on this.

  by akeitz on Mon Jul 25, 2005 at 12:58:20 PM PDT

  •  Have to disagree

    I have to disagree there - Roberts said he'd have to recuse himself, and that would seem to be unacceptable. If a candidate of any religious stripe said "Hey, what I do on Sundays will have NO bearing on my participation or rulings", I'd accept that and move on to whatever other criteria I wanted to examine about the guy.

    But this fellow has said (have seen the original source myself, but I'll trust its real) he'd have to let his religious beliefs dictate which cases he'd hear.

    Hey, two points for honesty; I'd prefer to know this now than AFTER he's sworn in, but several points against him for being a good choice for the top court in the land.

    by sirenbrian on Mon Jul 25, 2005 at 01:07:42 PM PDT

    •  His promise of recusal

      may be a good thing.  He can believe whatever he wants as long as he doesn't rule on it.  This leave Roe intact 5-3.  I don't really care about this guy, beyond painting him as Puritanical Fascist, so Bush can't claim he deserves another one when the next Justice leaves.  It even better if he recuses himself on any case that may conflict with his Catholicism.  I must say, if he's really that Catholic, he should find it hard to stand on the pdium next to a muderous criminal.  I imagine his piety is about a genuine as Bushes.  So my question is; is he bound tp that statement, and would it be grounds for his impeachment should choose to rule on Roe, Gay Marriage, etc.

      Patriotism is the virtue of the vicious

      by Thaddaeus Toad on Mon Jul 25, 2005 at 02:03:16 PM PDT

  •  He started it...

    which is, of course, a schoolyard excuse.

    But he really did.

    He COULD have said that in matters of law, his personal views would have to take a back seat to the Constitution, though of course they would influence his interpretation.

    That makes sense -- any strongly held belief will influence your decisions to some extent.

    He could have said that -- but he didn't. He said he would recuse himself. Which implies that he CANNOT separate his personal views from what the Constitution requires or implies.

    And that IMHO is grounds for not confirming him. He's just admitted that he can't deal with separation of church and state -- one of the basic principles of this country.

    by mmacdDE on Mon Jul 25, 2005 at 01:09:50 PM PDT

  •  Disagree

    Not all devout Catholics would agree with this statement.  It isn't the devout Catholic side of Roberts under attack, it's his willingness to put Catholicism over and above national rule of law.  That is unacceptable for a constitutional democracy.

    Granted, the Republicans will do their best to paint any attack on this statement as a general attack against Catholics, but Democrats should not allow them or help them do so.

    Here is a statement of a potential Supreme Court justice blatantly saying he will allow his religion to directly influence his decisions being made as a justice.  His role should be to interpret law based on the constitution, whether he considers it a living document or not.  Either way, papal decrees should have no influence.

    by JoeOhioan on Mon Jul 25, 2005 at 01:11:07 PM PDT

    •  I don't disagree with others' interpretation

      Yes he's basically saying he'd put his Catholic beliefs ahead of the constitution and yes that's really important in the larger sceme of things.  But what I'm arguing is that by highlighting what he said and insinuating that it makes him unfit for office, Dems may find themselves being accussed of anti-Catholic bigotry and not just by the lunatics at the Catholic League.

      Given that the Dem's can't muster a fillabuster and it's unlikely that harping on what Roberts told Durban will change the minds of folks like Lincoln Chaffee or Joe Lieberman, the Dems loose even though  they'd be perfectly right in bringing up the issue.

      In short it's probably an issue where we have to bite our tongues so as to not enrage moderate devout Catholics who would normally side with Democrats on many issues but would be turned off by this line of attack.
      

      by akeitz on Mon Jul 25, 2005 at 01:32:43 PM PDT

      •  The guy's catholic.

        Ergo, any dem. opposition will at some point be labeled anti-catholic bigotry. But you do have a point.
        This is (again) a matter for framing and careful speech-writing. If he cannot, as a Supreme Court Justice, hold the laws of the United States as supreme -- he is ineligible to be a Justice of the Supreme Court.
        (Repetition intentional. I wanted to get "highest court in the land" in there, but, well...)
        His private morality as regards his personal decisions in his private life is his own affair. If he is unable to hold the teachings of his church separate from the Constitution in making ultimate decisions about the laws of the nation, then he should not hold such a position.
        Or be appointed to it.

        by TiaRachel on Mon Jul 25, 2005 at 01:50:37 PM PDT

      •  Not at all

        The Dems own John F. Kennedy, a Catholic, whom many feared would essentially put the Pope in charge of the USA (same reason that the establishment clause had to be put forward by Jefferson - the Baptists wouldn't sign onto the Constitution, etc, if it meant that the government could or would be Papist. Funny thing, now THEY want to make the government Baptist). Kennedy flat-out reassured everyone on this score by stating that his religious faith is separate and apart from his role as President. That his policies would be what was best for the country and in accordance with the Constitution and NOT in accord with Papal dictates.

        Roberts screwed the pooch on this. He didn't pull a very good, correct Kennedy. He pulled a devout Catholic who is incapable of doing what a judge MUST do, particularly on the SC, and that is place the Constitution and Bill of Rights above ALL religious beliefs.

        Now that he has made this statement, if he is confirmed now and does NOT recuse from an abortion, birthcontrol, right-to-die, or death penalty case, how could we EVER believe that his ruling is anything BUT Papal dictate/Church doctrine? The ONLY way around it is recusal (not acceptable on the SC except for a few very clear cases) or to rule in favor of abortion, birthcontrol, the right to die, and against death penalty. Any ruling in the other direction immediately screams "Church doctrine!" and "Faith before Consititution!".

        No. Frickin'. Way is that acceptable.

        by praedor on Mon Jul 25, 2005 at 02:01:34 PM PDT

    •  Wait a second.

      >>Here is a statement of a potential Supreme Court justice blatantly saying he will allow his religion to directly influence his decisions being made as a justice.<<

      Actually, he said the opposite.  He said he'd recuse himself.

      I really doubt the quotes above are entirely accurate.  I suspect what Roberts really said was that if his religious beliefs compelled him to conclude that he couldn't uphold the Constitution he'd sit that case.  And there's nothing wrong with that statement.  In fact, that's exactly what judicial ethics calls for.

      by cityduck on Mon Jul 25, 2005 at 01:40:46 PM PDT

      •  But judges take an oath to uphold

        the constitution.  He shouldn't even take that oath if he feels that his personal beliefs will be in such great conflict with constitutional law that he will have to recuse himself from select cases.

        He shouldn't be allowed to take that oath, because we know in advance that it will be bullshit.

        by Black Maned Pensator on Mon Jul 25, 2005 at 01:56:47 PM PDT

      •  Recuse

        I feel that refusal to judge on a list of issues that you personally / religiously disagree with is influencial on your judicial decisions.

        If a person only chooses to decide on state/religion issues when he agrees with the lawful conclusion, and chooses to not rule when he disagrees, that is unacceptable to me.  Your role as a Supreme Court justice is to decide the case based on constitutional law.  If you allow your religious beliefs to stop you from make a judgement, then you are not doing your job.

        For instance, if he came to a conclusion based on constitutional law, but it goes against his religious beliefs, he says he will recuse himself.  This is apparently after he has heard the arguments of the case, since he will only recuse himself if the conclusion disagrees with his beliefs.  Then, after he reaches a constitutional conclusion, he decides to not express his opinion.  I cannot agree with that.  That is a deriliction of duty in my opinion.

        I will admit, I am ignorant when it comes to Supreme Court laws and all, so I may be completely wrong here.  These are my opinions.

        A quick google on recusals turned up this:

        Reasons for disqualification are laid out in the United States Code (Title 28, Section 455), but the justices themselves are their own final arbiters. According to the statute, justices, judges, and magistrates should recuse themselves if they have a personal bias concerning anyone in the case, or independent knowledge of the facts in dispute; if they worked on the case as a private or government lawyer; or if they or close relatives have a financial interest in the case.

        Those reasons make sense to me.  Religious reasons do not.  If I am wrong, so be it.  But I feel, personally, that a judges religious views should not overrule their constitutional views.

        by JoeOhioan on Mon Jul 25, 2005 at 02:07:25 PM PDT

•  time to pull out that old chestnut

  When JFK was running there was a meme that he would take his orders from the vatican - of course Kennedy  strongly came out for seperation of church and state.. sounds to that

  Roberts as a Supreme Court Justice is going to take his orders from the Vatican

  by smartone on Mon Jul 25, 2005 at 12:58:35 PM PDT

  •  But not follow those orders

    On the flip side of this, he is telling the rightwingers (unless they believe he was lying) that they CAN'T count on his vote for anything they want - he will recuse himself from all of the issues important to them.

    by David in Burbank on Mon Jul 25, 2005 at 01:16:45 PM PDT

    •  Not quite

      If his legal reasoning leads him to a conclusion in keeping with Catholic moral teaching, he will not recuse himself.

      by Elwood Dowd on Mon Jul 25, 2005 at 01:30:06 PM PDT

      •  Exactly.

        Exactly.  And since he's a "devout" Catholic (as opposed to all  those who believe in doing good works, helping the poor and serving the needy) he'll  NEVER reach a legal conclusion that disagrees with (conservative) Catholic doctrine.  His entire response amounts to exactly nothing.  The man is an articulate weasel, and this little prevarication is neither ethical nor moral.

        by Bob Love on Mon Jul 25, 2005 at 01:56:13 PM PDT

        •  Death penalty

          The Church has a strong position against the death penalty. Roberts' statement seems to be a guarantee that he will never vote to uphold the death penalty.

          by Elwood Dowd on Mon Jul 25, 2005 at 01:59:47 PM PDT

  •  That will be the SCLM spin but

    it is just wrong.

    If a nominee believes his religious convictions prevent him from objectively interpreting the constitution, that nominee should withdraw his name from consideration, he is not qualified to serve.  Since he won't withdraw, the Senate should not confirm a nominee who admits his personal convictions prevent his objective service.  

    Consider a Roman Catholic obstetrician/gynecologist who applies for a job at an abortion clinic, during the job interview he mentions that his religious views will prevent him from performing abortions.  The clinic is not practicing religious discrimination when it refuses to hire a candidate who will not do the job. It isn't the candidate's religious views that disqualified him, if he were Roman Catholic and also willing to perform abortions for the clinic they'd hire him.
    

    by Thistime on Mon Jul 25, 2005 at 01:49:17 PM PDT

•  Wow

  I don't know how to take this.

  If he considered a case where, in his view, the law would require a ruling that his church considers immoral, he says he would recuse himself.

  There's alot there.

  First thing that comes to mind is that he would be sitting on the Supreme Court, the final arbitrator in determining what law means.  Therefore, it would be up to him to interpret the law.  So, theoretically, he could always determine that the law requires a ruling that is in full agreement with his church.  Church and state, separate no longer.

  So basically, in a majority of the matters that reach the Supreme Court (the list that DavidNYC posts, plus numerous others), Roberts would either judge in accordance with the church or not judge at all.  Where would the constitution fit into this mindset?

  Is it just me, or is that is simply unacceptable?

  by JoeOhioan on Mon Jul 25, 2005 at 12:59:57 PM PDT

  •  you're right, Joe

    there is a lot implicit in that comment.  He's saying that he puts his religion first and his duties as a Justice second--and when they come into conflict, he'll recuse himself.
    BUT, as you suggest, this line of thinking contradicts the very premise on which our legal system is based: the separation of church & state.

    I agree that this is simply unacceptable.

    Further, given the sheer number of cases in which religious views can play a role, he'd be off the bench more often than on it.  Absurd.

    by katchen on Mon Jul 25, 2005 at 01:15:01 PM PDT

    •  B.S.

      The Separation of Church and State does NOT provide support for religious discrimination.

      The legal ignorance on this site is truly appalling.

      For example, Art. 6 of the Constitution includes a clause saying that the federal government cannot have any "religious tests" for office.  The notion is that anyone, no matter what their religion, should be allowed to hold office in the Federal goverment.  

      This argument offends that notion.  

      Supreme Court Justices occassionally have to recuse themselves.  Why is it grounds for unfitness for office when the recusal is based on a religious conviction as opposed to a financial interest?

      It's not.

      This rhetoric is bigoted, ignorant and offensive.

      by cityduck on Mon Jul 25, 2005 at 01:23:25 PM PDT

      •  of course religious views should not

        preclude him from becoming a Justice.  But Roberts should be willing to say that while he's on the bench he will bracket off those views and focus on the law.

        This is much like the issue of pharmacists refusing to fill certain prescriptions based on religious beliefs.  I call foul.  If you're going to be a pharmacist, then you fill all legally-written prescriptions; and if you want to be on the Supreme Court, you have to be willing to base your decisions solely on secular law.

        by katchen on Mon Jul 25, 2005 at 01:47:24 PM PDT

        •  I completely disagree with you on ...

          pharmacists.  If a Pharmacist is in business for themselves, I see no reason why they should not have the right to choose not to fill prescriptions that offend their religious beliefs.  Obviously, if they choose to do so, it will cost them business, and not just the business of selling morning after pills.  But, that's a choice which our Constitution allows them to make.  

          Similarly, M.D.'s should have the right to choose not to perform an abortion.

          Isn't this sort of what the pro-Choice movement is all about?  The right to personal autonomy?  Isn't it right to respect the religious beliefs of our citizens and not compel them to violate those beliefs?  Is it worse to force a Muslim prisoner to piss on the Koran than to force a very conservative anti-abortion Catholic pharmacist to dispense abortion prescriptions from his own business?

          by cityduck on Mon Jul 25, 2005 at 02:14:07 PM PDT

          •  If you want personal autonomy

            it's probably better not to go into a highly-regulated profession that has life or death consequences.  Sure, in a big city, when there's another pharmacy down the block, there seems to be no harm in allowing pharmacists to do whatever they want.  But in areas where pharmacies are scarcer, and wingnut beliefs more common, the consequences of giving pharmacists total freedom are more serious.  

            I'm assuming that you wouldn't assert that pharmacists have the right to refuse to sell to black people.  Or to single mothers.  Or to eliminate wheelchair access to their buildings.  Or to ignore basic sanitary standards while handling and storing their pills.  And I hope that you wouldn't change your opinion on these issues just because the pharmacist asserted a religious justification.  The "personal autonomy" line sounds great until you remember that lots of people are forced, as part of their job, to do things that are against their beliefs--and we wouldn't want it any other way.  If you don't want to dispense drugs prescribed by a doctor, then maybe pharmacy isn't the profession for you.

            Of course, there's a question about where we should draw the line.  It seems wrong to force an anti-abortion doctor to perform abortions.  But it also seems wrong to allow a black-hating pharmacist to refuse to sell aspirin to black people.  I would say that pharmacists should not be given the kind of discretion you propose because 1.) it is extremely important for them to do their jobs properly, and 2.) they have no business interfering with the doctor/patient relationship.  Pharmacists are intermediaries, and I see no reason to give them veto power over the medical decisions of a doctor and the moral decisions of a patient.  

            by dtj on Mon Jul 25, 2005 at 06:54:03 PM PDT

      •  You're wrong

        Recusal is supposed to be extremely rare.  It usually occurs when a judge has ties as a former attorney to a party in interest or some financial stake.

        It's a whole other matter when a judge is talking about recusing himself from entire AREAS of law because of personal beliefs.  That's completely unprecedented ESPECIALLY since he suggests that he'll fully participate and will make rulings on abortion cases unless the law and Constitution require a ruling he considers immoral.

        Is he going to recuse himself on all the death penalty cases too?  There's a lot of habeas applications as well as emergency requests for stays that come from Death Row that don't get granted and the Catholic doctrine is pretty clear on the moral unacceptibility of the death penalty.  

        I submit it makes no sense to put Roberts on the SCOTUS, send him habeas petitions on capital cases and stay requests only to have him waste time and only issue rulings on those cases where he can grant them.  If he can't grant it, then he must recuse himself and the case gets sent to someone else for a formal ruling.  How does that make sense?

        How about equal protection challenges or cases in which statutes affect the rich and poor disparately?

        Law is largely a codification of social morality and if the Catholic Church has a stand on an issue AND if Roberts is serious, there's gonna be a lot of cases for him to sit out.

        by gsbadj on Mon Jul 25, 2005 at 01:52:38 PM PDT

        •  Again ...

          I seriously doubt this quote is accurate.  I suspect what Roberts really said is that if he felt that he could not uphold the Constitution because of a sincerely held religious belief he'd recuse himself.

          And that's exactly what judicial ethics require.

          Such a statement is not controversial.

          I really think that people are in a bit of a hysteria here.  And some of the rhetoric is ugly.

          Time will tell who's right.

          by cityduck on Mon Jul 25, 2005 at 02:16:26 PM PDT

          •  OK then...

            Answer each of these:

            What legal authority in the field of "judicial ethics" require him to recuse himself when he personally disagrees with what the law requires him to do?

            Why is his refusal to rule on a case before him in a manner that is consistent with the law and Constitution not a violation of both his oath and Canon 3?

            Name me the last 10 times that SCOTUS judges recused themselves from deciding cases in a manner consistent with the law and Constitution because of personally conflicting beliefs.

            Where did you get your legal education that allows you to pick apart all the "ignorance" about the law that you see around here?  I clerked for 2 years and practiced and handled appeals for 13 years.

            by gsbadj on Mon Jul 25, 2005 at 09:04:14 PM PDT

    •  No, he wouldn't

      Further, given the sheer number of cases in which religious views can play a role, he'd be off the bench more often than on it.  Absurd.

      No, he wouldn't.  And that's the problem.

      It's up to him to decide when religion & law come into conflict, he's the final arbiter, and I can bet ya right now that a vast majority of the time, he would miraculously conclude that his interpretation of the law and his religion are aligned 100%.

      He'll be judging according to the bible, or at least his interpretation of the bible, far more often than he would recuse himself.  And, I believe, far more often than he'll be judging according to his interpretation of the constitution.  A problem of epic proportions here.

      by JoeOhioan on Mon Jul 25, 2005 at 01:24:52 PM PDT

      •  Have you read the Bible?

        It has very little to say on anything of Constitutional relevance.

        Again, the rhetoric on this site really looks like anti-religious bigotry.  

        You are pushing the concept that anyone who is religious is unfit for a judgeship.

        That is really offensive.
         

        by cityduck on Mon Jul 25, 2005 at 01:36:43 PM PDT

        •  Yes

          Yes, I have read the Bible.

          I agree that it says very little on Constitutional law.

          That does not stop religious groups from asserting that various passages in the Bible have a direct relationship to constitutional law.  The Catholic church has built an immense collection of laws based off of biblical texts.  The Jewish faith has an even larger set of rules and laws based off of religious texts.  Many societies throughout history have based their laws off of the Bible.  So even though the Bible does not specifically define constitutional law, many people view the Bible as something that societies should found their laws upon.

          We are not supposed to be one of those societies.

          You are pushing the concept that anyone who is religious is unfit for a judgeship.

          That is not at all what I am pushing.  What I am saying is that anyone who would place religious ideologies over constitutional law should not have a place on the highest court in the land.  Somebody can be religious and still maintain objectivity when it comes to constitutional law.  In fact, I would say that is the norm in regards to most American judges.

          But if somebody freely admits that they will place religion over constitution, which is how I view this statement, and how I view the Bush administration fundamentalists in general, then I do believe they are unfit for judgeship.

          And if you cannot see the difference between those two viewpoints and continue to be offended, then so be it.  I find it offensive that somebody elses interpretation of the Bible should be pushed on me from government positions.  

          by JoeOhioan on Mon Jul 25, 2005 at 01:50:42 PM PDT

          •  You really need to read my post.

            >>Somebody can be religious and still maintain objectivity when it comes to constitutional law.  In fact, I would say that is the norm in regards to most American judges.<<<

            I absolutely agree. I don't see how Roberts has removed himself from that category if he said, as I suspect, that if he felt he could not be objective he'd recuse himself.  

            >>But if somebody freely admits that they will place religion over constitution, which is how I view this statement, and how I view the Bush administration fundamentalists in general, then I do believe they are unfit for judgeship.<<

            Where did Roberts say he would place religion over the Constitution?  He said he'd recuse himself, not that he'd act in a biased manner.

            I really think this story is going to go nowhere once the dust settles.  Right now it looks like a game of telephone and its going to hurt the Dems if, based on "someone said Roberts said ..." we suddenly declare that religious people shouldn't be on the Court.

            >>I find it offensive that somebody elses interpretation of the Bible should be pushed on me from government positions.<<

            So do I.  But Roberts said he wouldn't do that by saying he would recuse himself if he thought his independence was compromised.

            Supreme Court Justices recuse themselves for financial reasons on occassion, why should religion be that different?  

            by cityduck on Mon Jul 25, 2005 at 02:05:36 PM PDT

            •  OK

              It looks like we're coming to different conclusions based off of his statement.  

              Maybe I'm reading too much into his statement, maybe not.  I am not anti-religion, but the recent upswing of religious influence in our government does scare me.  This seems to be another notch in that upswing, so I may be a little over-sensitive here.  I willa dmit that.

              However, I still feel I am justified in my apprehension.  I'll try to convey my thoughts here.

              So, when will he recuse himself?  When "the law required a ruling that his church considers immoral".  So when would he know that the law would require a certain ruling?  After the arguments are heard and the research is done.  Basically, after the case is tried.  So he would be a part of the proceedings, and then, afterwards, recuse himself.  But, only if, in his opinion, the law required a ruling his church considers immoral.

              So, either he would rule in accordance to his religious beliefs, or he would not rule.  In the highest court in the land, I believe that the absence of a ruling is just as effective as a ruling itself.  Maybe not in all cases, but in closely contested cases, it may be.  So, instead of ruling as his interpretation of the constitution requires him to do so, he would instead choose to recuse himself.

              And this is after the case has been heard.

              To me, that is religion influencing government, more so than I am comfortable with.

              by JoeOhioan on Mon Jul 25, 2005 at 02:15:43 PM PDT

              •  We're just going to have to disagree.

                I don't know what Roberts was asked or what he said.  And neither do you.  It's just a game of telephone and I seriously doubt this issue will play out with him repeating this supposed statement.  I suspect he just made the stock answer to questions of this type.
                

                by cityduck on Mon Jul 25, 2005 at 02:29:45 PM PDT

        •  Read the question and Roberts' answer again

          Roberts was NOT asked how he would rule in a case that might lead to a conflict with what the Bible says. The Bible, in the Catholic Church at least, is not considered the inerrant word of god that tells things EXACTLY as they were and are. They don't go for that creationism crap, etc. The problem is that the question was about having to make a ruling that might conflict with what his church considers immoral. That covers a LOT of ground that does NOT derive from the words in the Bible (think of it as the Catholic Church sees a "living Bible" that must be interpreted and penumbras found, etc. They are NOT strict constructionists that say the Earth was made in 6 days, Adam and Eve, blah, blah). Roberts' CHURCH considers birthcontrol immoral, abortion immoral, the death penalty immoral, homosexuality immoral, considers assisted suicide/right to die immoral. He is stating that this holding by his Church trumps the law and the Constitution.

          No. It doesn't. NOTHING trumps the Constitution and Bill of Rights. What next, a justice that has the religious belief that blasphemy is unacceptable so he/she rules in violation of the 1st Amendment to silence those who are blaspheming?

          Roberts cannot be trusted to rule on ANY social policy where the Catholic CHURCH teachings come into conflict with the greater good for our Constitutional society. Of course, how can he square his dislike for environmental regulation, against workers rights, etc, while the Church of his is strongly in favor of workers rights, the rights of the poor, for the environment? Apparently he picks and chooses which of his Church's doctrines override the Constitution. Random and unacceptable.

          by praedor on Mon Jul 25, 2005 at 02:13:36 PM PDT

          •  I guess I missed the transcript.

            All I've seen is a game of telephone.

            I suspect that we'll quickly see that the conversation went more like I described.

            But, again, he did NOT say that his Church trumps the Constitution.  He said that if he felt he could not uphold the Constitution he'd recuse himself.  As he is required to do under judicial ethics.  That is far different than ruling in accord with his Church's view of morality instead of consistent with the Constitution.  It is the difference between acting ethically versus unethically.

            I believe that all Roberts said is that he'd act ethically.  But, because of the telephone tag nature of the reporting here, we're getting a garbled version that will soon be clarified.

            And in the meantime, this looks like the smear on JFK in 1960: "He'll take his orders from the Vatican!"

             

            by cityduck on Mon Jul 25, 2005 at 02:23:53 PM PDT

            •  Listen to yourself !

              He said that if he felt he could not uphold the Constitution he'd recuse himself.  As he is required to do under judicial ethics.

              No: under judicial ethics, and under the oath of office he takes, he is required to uphold the Constitution. Period.

              That's why this report--which I agree may be garbled--matters.

              by Elwood Dowd on Mon Jul 25, 2005 at 04:12:14 PM PDT

              •  A bizarre interpretation.

                Supreme Court Justices recuse themselves periodically for various reasons.  Sometimes they may have a financial interest, other times they may have said something that gives the appearance of pre-judging the case.  Are these Justices violating judicial ethics by recusing themselves?

                Of course not.  A Justice's ethical obligation is not to decide every case.  

                by cityduck on Mon Jul 25, 2005 at 04:29:34 PM PDT

                •  recusal

                  You illustrate a couple of issues that would cause a judge to recuse themselves. They are largely based on issues that boil down to a conflict of interest - where the judge could be perceived to have or actually does have an interest.

                  You seem to be missing the point that religious belief is an inappropriate basis for recusal in a secular society - and particularly in yours - where your constitution dictates that the state will not establish (or support) a particular religion. He would be declaring a conflict based on the church's interest - not his own.

                  His job is to uphold secular law - if his religious beliefs will not allow him to do so - then his religious beliefs are interfering with his ability to act as a judge according to your constitution. Unfortunately for him, that disqualifies him as a SCOTUS judge.

                  As a previous poster pointed out, there are many social issues currently before the courts that the Catholic church has a very definite and well defined position. For him to have to recuse himself from all of those cases is absolutely ridiculous and defeats the purpose of even being selected for the court.

                  If he meant what he reportedly said - he's in big trouble. Or should be.

                  by lcbo on Mon Jul 25, 2005 at 07:33:43 PM PDT

•  Way to Go, Senator Durbin!

  Very smart question.

  It's interesting that Roberts actually answered it. I can only guess that he will subsequently claim that his reading of the law doesn't conflict with his religious beliefs.

  by Mr X on Mon Jul 25, 2005 at 01:00:16 PM PDT

•  Doesn't the Catholic Church

  have a written opinion on just about everything somewhere?  American Catholics on the right publicize the Vatican's view on reproductive rights, but they must also have "policy papers" on pretty much everything else including medical marijuana and imminent domain.

  by beagleandtabby on Mon Jul 25, 2005 at 01:00:18 PM PDT

•  From today's WH press briefing

  Q Scott, The L.A. Times has a column today, and is reporting on these informal discussions that Judge Roberts had last week with senators. Senator Durbin asked him what he would do if the law required a ruling that his church, the Catholic Church, considered immoral. And Judge Roberts is said to have said he would probably have to recuse himself.

  MR. McCLELLAN: What is this from?

  Q This is a column in today's Los Angeles Times.

  MR. McCLELLAN: A column by an individual?

  Q Jonathon Turley.

  MR. McCLELLAN: I don't know about -- well, I know who he is. I don't know all the discussions that Judge Roberts has had with members of the Senate. He's had good discussions with a number of them already, and those discussions are continuing. That's part of the ongoing consultations ahead of the confirmation hearings. But I do know that Judge Roberts has said in previous testimony that personal beliefs or views have no role whatsoever when it comes to decisions that judges make. And he's indicated there is nothing that is in his personal views that would prevent him from faithfully and fully applying the law. And that's something he has said in previous testimony. So I'm not sure all the specifics about any conversations or what he's referencing.

  by BarbinMD on Mon Jul 25, 2005 at 01:00:39 PM PDT

  •  All this Executive Branch homework Barney ate ...

    ... must be going directly to his hips. Is that why he hasn't been under the President's arm so much lately?

    by Peanut on Mon Jul 25, 2005 at 01:07:49 PM PDT

  •  OK.. so now Scottie is calling Durbin

    a liar? Or is he calling Roberts a liar? Because they can't BOTH be true.

    Of course, that assumes Scottie knows what a lie is.

    by mmacdDE on Mon Jul 25, 2005 at 01:12:39 PM PDT

    •  nope,

      the Roberts nomination is yet another "ongoing" process about which Scotty cannot speak.

      So: until and unless the world comes to a dead standstill, Scotty won't be answering any questions.

      by katchen on Mon Jul 25, 2005 at 01:20:14 PM PDT

    •  Or Turley

      by Superribbie on Mon Jul 25, 2005 at 01:34:22 PM PDT

      •  Given the parties involved

        Frankly, I think the most likely scenario is that Turley's the one who is lying or at least badly stretching the truth of what was actually said.  Roberts is too smart not to give some sort of non-answer answer to this question.

        by Frank Flint on Mon Jul 25, 2005 at 03:30:22 PM PDT

•  On the political jujitsu side,

  Is there any large disparity between Catholic opinon and Protestant opinon on Supreme Court matters?  I know they align perfectly on most issues, abortion, gays, porno, etc.  But are there issues where Cotholic dogma would require a judicial decision different than Protestant dogma?

  Death penalty, maybe?

  The pope condemns the death penalty, but Bush is more than gung ho on this.  So, if a death penalty case came before him, and the law required him to make the judicial decision that the death penalty is a viable punishment, he, being the good Catholic he is, would have to recuse himself from making a decision?  Or would he ignore the law and always rule against the death penalty?

  Either way, how do the Bush supporters feel about this?

  by JoeOhioan on Mon Jul 25, 2005 at 01:05:31 PM PDT

  •  Depends

    There isn't a single "Protestant dogma."  You'd have to pick a particular denomination and compare it.

    by lemuel on Mon Jul 25, 2005 at 01:11:38 PM PDT

    •  True

      I guess I'm speaking specifically of the core Baptist followers of our President.  These are the ones that, politically, the Democrats should attempt to drive a wedge between.

      by JoeOhioan on Mon Jul 25, 2005 at 01:17:53 PM PDT

  •  Yes. Some huge differences.

    Much of what the Pope (well, the last one, not necessarily Darth Benedict) said would actually contradict a lot of right-wing dogma.  Namely, 1) John Paul II condemned the war in Iraq, and 2) he endorsed evolution.  And then there's the death penalty.

    Nevertheless, conservative American bishops tend to ignore points like that.

    by iCaroline on Mon Jul 25, 2005 at 01:12:12 PM PDT

    •  The devout Catholics absolutely ignore

      the Pope on the death penalty as well as the war in Iraq.  

      by Thistime on Mon Jul 25, 2005 at 01:32:21 PM PDT

      •  Not quite!!!!!

        There are many devout Catholics who are anti-death penalty and anti-war.  Think Martin Sheen.  What you're thinking of are conservative Catholics, the hypocrits who sniff about liberal "cafeteria" Catholics when in fact they are "cafeteria" too!

        by akeitz on Mon Jul 25, 2005 at 01:39:06 PM PDT

  •  Catholics vs Catholic dogma

    Most Catholics in the USA are pro-birthcontrol and USE birthcontrol. They are also no different than the general population with regards to abortion, the death penalty, etc. Only those wackjob hardcore Opus Dei types (loons up to and including Mel Gibson) bite off on all Catholic dogma/doctrine. Roberts, if ruling based on Catholic morality and doctrine would be going against the wishes of most Catholic citizens in the US. Of course, the same goes for Protestants, etc. They are all NOT of one mind and are no different, by and large, than the overall general population.

    Most Catholics would not be comfortable with a SC justice ruling on their personal lives based on Papal decree. It doesn't help that it is unConstitutional and a violation of legal ethics, etc.

    by praedor on Mon Jul 25, 2005 at 02:19:14 PM PDT

•  Recuse yourself?

  How about we recuse you, right here and now?

  by Kagro X on Mon Jul 25, 2005 at 01:06:28 PM PDT

•  Scalia's advice

  The article goes on to quote Antonin SDcalia, also a 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."

  What would happen to the public's view of the Court if the Pope declared that Justices who uphold abortion cannot receive Communion, and Scalia and Roberts then voted against Roe?

  by Elwood Dowd on Mon Jul 25, 2005 at 01:06:54 PM PDT

  •  The obvious follow-up question:

    Judge Roberts, is Justice Scalia a bad Justice, or a bad Catholic?

    by Kagro X on Mon Jul 25, 2005 at 01:11:18 PM PDT

  •  Well ... Kennedy is also a Catholic.

    So would he need to be disqualified under your scenario?

    This is ridiculous.  The rhetoric here is an awful echo of the argument against JFK's assumption of the Presidency.

    I certainly think that a Justice can have a clearly defensible view that there is no Constitutional right to abortion if they subscribe to a judicial philosophy like "originalism," "textualism," and perhaps even a Lochnerian "liberty" framework.  If so, then why should their religion matter?

    by cityduck on Mon Jul 25, 2005 at 01:12:28 PM PDT

    •  In JFK's time...

      The Catholic Church in the United States was not threatening political figures with ecclesiastical retribution. Today, it is.

      The Church presumably believes this campaign will be effective.

      by Elwood Dowd on Mon Jul 25, 2005 at 01:20:30 PM PDT

    •  No he wouldn't be

      But it's a different kettle of fish for a judge who declares that religious belief will prevent him from making a ruling.

      He is in effect representing the church's interests, and recusing himself because the church has a conflict of interest not him personally.

      There's a big difference there that you don't seem to grasp. His religion matters if he says it does.

      by lcbo on Mon Jul 25, 2005 at 07:40:16 PM PDT

  •  Do they lack dictionaries to look up Impartiality?

    If they burned theirs, maybe they should read up on Solomon.

    by Peanut on Mon Jul 25, 2005 at 01:12:36 PM PDT

•  This is not a big deal.

  The obvious spin is that Roberts would recuse himself if he felt that a religious belief would come into conflict with his ability to faithfully uphold the Constitution.  The conservative example of this is if a lower court judge, whose job is to follow the law, has such a fundamental religious opposition to the death penalty that they cannot enforce the law as declared by the Supreme Court.

  However, it is quite another thing if Roberts believes that his religious beliefs would not lead him to a conclusion contrary to a proper interpretation of the Constitution.  Consequently, if Roberts believes that he can faithfully uphold the Constitution he will have no need to recuse himself.  The mere fact that his religious beliefs might coincide with the correct Constitutional interpretation is of no moment.

  Thus, if like Santorum says he has in recent pronouncements, Roberts were to arrive at the religious belief that the death penalty is immoral, as a Supreme Court Justice he would not need to recuse himself from a death penalty case if he honestly felt that the death penalty was unConstitutional.  He would only need to recuse himself if he believed that his religious beliefs would cause him to rule in a fashion that was not consistent with the Constitution.

  Obviously, the fact you are religious is not a reason for disqualification from the Supreme Court.  Similarly, the fact that your religious views coincide with some Constitutional conclusions is not reason to be disqualified.  It is only on the very limited cases where the Justice's ability to uphold the Constitution is impaired, which is highly unlikely in the Supreme Court context as opposed to the lower courts, that disqualification is required.

  I don't see Roe being one of those cases.
  

  by cityduck on Mon Jul 25, 2005 at 01:07:51 PM PDT

  •  I think it is a big deal

    Like I said upthread, on any of the large list of issues that bring law & religion together, Roberts will apparently either side with the Catholic church or recuse himself.  I'm betting that more often that not, he will side with the Catholic church, regardless of constitutional considerations, but that's just a jaded personal opinion.

    However, siding with the church or refusing to take sides is not an acceptable position for a Supreme Court justice to have.

    by JoeOhioan on Mon Jul 25, 2005 at 01:16:13 PM PDT

  •  I agree

    I can just empathize with him being a Catholic.

    If he is intellectually honest and a devout Catholic,  and when your judgement base on the Constitution go against the Church,  there is no way but recuse himself.

    Thus I am conflicted.

    Catholic Politicians like Sen Kerry and Sen Edward Kennedy can seperate their being a Catholic and being an American citizen upholding the law  but if Mr John Roberts cannot do so then, is he the right SCOTUS nominee.

    I think a SCOTUS justice is willing to go against his religion to uphold the Constitution.

    by timber on Mon Jul 25, 2005 at 01:19:13 PM PDT

    •  Half-right.

      A Supreme Court Justice must uphold the Constitution.

      If there is a case wherein they feel they cannot, then they have to recuse themselves from that case.  

      But, that is a far cry from saying that if a Justice has religious beliefs about the morality of an issue they must recuse themselves.  If the Justice believes that they can properly rule on the Constitutional issue then recusal is not necessary.  

      This thread is astoundingly offensive.

      by cityduck on Mon Jul 25, 2005 at 01:28:07 PM PDT

      •  I dont think you are answering my question.....

        Let us say the issue is "Is Roe V Wade costitutional?"

        For example, after studying the case Justice Roberts felt Roe V Wade decision was constitutionally Correct.

        However, as a Catholic, he is against abortion.

        What should Roberts do?  Recuse himself or go against his church OR do what is constitutionally right.

        If one cannot make a decision to uphold the Constitution despite his religious beliefs then he should not be qualified for the position.

        However,  if he truly feels that Roe V Wade was against the Constitution then that is fine and decide the way he believes.  (I am pro-Life and really am neutral about Roe V Wade).

        by timber on Mon Jul 25, 2005 at 03:23:39 PM PDT

  •  Consider his position

    If Roberts studies the Constitution and previous decisions carefully, and concludes that the Constitution does indeed support abortion rights, or gay marriage, he would recuse himself rather than do his job and so rule.

    Completely unacceptable.

    by Elwood Dowd on Mon Jul 25, 2005 at 01:24:40 PM PDT

    •  I disagree with two of your premises.

      First, I disagree with the premise that a Justice who rightly percieves that the Christian religion regards homosexuality as a sin would be compelled to rule against equal rights for gays.  Kennedy sure didn't have that problem.  Most religious Jurists are sophisticated enough to realize that only 3 of the 10 Commandments have made it into law.  So while something might be a sin, like infidelity, that does not mean that it should be illegal or unConstitutional.  [And, I'd note, that the Bible does not speak to abortion.]

      Second, I disagree with the notion that it would be bad for Roberts to recuse himself on gay marriage or abortion in the scenario you outline.  It would be FANTASTIC.  Because a less principled Jurists appointed in Roberts place like would NOT recuse themselves.  Thus, Roberts costs the Conservative block a vote, making it impossible for the Conservatives to overtun Lawrence or Roe with 6 conservative Justices on the Court, as opposed to just 5.

      by cityduck on Mon Jul 25, 2005 at 01:33:30 PM PDT

      •  You seem to have a very low opinion...

        of his ethics. In my example, Roberts has concluded that the Constitution requires a certain ruling, for example supporting abortion or gay rights. Unlike Kennedy, Roberts says that he would recuse himself rather than rule when the result would be contrary to the Church's moral teachings.

        You are assuming that, without a recusal, he would deliberately rule contrary to what he believes the Constitution requires.

        by Elwood Dowd on Mon Jul 25, 2005 at 01:40:07 PM PDT

        •  No. I am being pragmatic.

          Anyone GW appoints will be anti-Roe.

          But again, I seriously doubt this quote is accurate.  It would be a stock answer for Roberts to say that if he felt an issue came up on which he felt could not follow the Constitution, he would recuse himself.  That is a far cry from saying that he would recuse himself on every moral issue touched on by religion.

          by cityduck on Mon Jul 25, 2005 at 01:59:54 PM PDT

          •  Agreed, the quote is suspect

            We're getting it third-hand. He might well have said something unexceptional, rather than giving the answer as reported.

            But, if he did give that answer, it puts him in a much different position than Scalia and Kennedy, and I believe it would disqualify him.

            I'm sure we'll see clarification over the next couple of days.

            by Elwood Dowd on Mon Jul 25, 2005 at 02:05:36 PM PDT

•  By those terms

  he shouldn't have the job.

  by moon in the house of moe on Mon Jul 25, 2005 at 01:12:00 PM PDT

•  Perhaps he thinks

  that if he can "find" (pull out of thin air) a constitutional justification for the moral and religious outcome he may then justify to himself that there is no reason to recuse himself.

  I suspect that's what he'd do.

  by Thistime on Mon Jul 25, 2005 at 01:15:56 PM PDT

•  Roberts is prolife not merely antiabortion

  Assuming his politics are the same as the person he shares his bed with (or at least reasonably close), Roberts believes in a consistent prolife position and not the mere antiabortion position that Bush & Co. too often espouse.   [As I understand the term "consistent prolife" means oppose to abortion, elimination of capital punishment, bans on euthanasia, and guarantees about the welfare of children, amongst other goals.]

  There is a constant tension among those who work on such issues of whether one, for example, can oppose abortion and favor the death penalty and still call themselves prolife.  As someone who works on criminal justice issues (including the death penalty) I am shocked about the number of "consistently prolife" types who come out to work against state killing who viciously attack the crowd that believes "prolife" means that one only has to be "antiabortion."  

  Because there has been some talk about Mrs. Roberts activities with Feminists for Life, I have reposted (although I think it is slightly dated) official resolutions on where they stand:

  Official Resolutions

  FFLA opposes abortion as an oppression of women and as discrimination against unborn children, and also opposes euthanasia as discriminatory, selective killing.  Positions on related issues are:

  ( 1) We support the combination of the Human Life Amendment and the Equal Rights Amendment as long as it has wording to render it either pro-life or abortion-neutral.
  ( 2) We support the right of women to have all information necessary to make informed decisions concerning abortion, including but not limited to the biology of fetal development, the physical and psychological health risks of medical and surgical intervention, and alternatives to abortion.
  ( 3) We oppose unnecessary hysterectomies and mastectomies.
  ( 4) We support policies, by government or employers, which enable families to care for their children and other dependents, including including family leave and child care.
  ( 5) Whereas reproduction involves both men and women, both men and women have the obligation to be responsible for children both before and after birth; we therefore support child support enforcement efforts.
  ( 6) We believe that full-time child rearing must be recognized as a legitimate career choice option.
  ( 7) We oppose school-based clinics as a misdirection of health resources, as there is no evidence that they decrease pregnancies and they act as a wedge for abortion.
  ( 8) We support boycotts of sellers of pornography.
  ( 9) We oppose any legally sanctioned (i.e., enforceable) contracts for surrogacy.
  (10) We believe that after the child is born, surrogacy should be handled like any other adoption in that the birth mother has the right to change her mind and keep her baby within a given period of time.
  (11) Embryos must not be destroyed in the process of in-vitro fertilization.
  (12) We oppose the manufacture and sale of any birth control method that acts as an abortifacient, such as the IUD.  The insensitivity to the fact that a new life has begun is matched by an insensitivity to the mother, as can be seen by the health problems with such methods and by the frequent lack of information given women about abortifacient effects.
  (13) We oppose the sale and manufacture of any birth control method which is known to create undue health risks.
  (14) We endorse natural family planning as the safest means of family planning in regard to health risks, one that requires the responsible participation of both the man and the woman, and the only method which serves the rich and the poor equally well.
  (15) Apart from these resolutions we take no stand on contraception. Abortion kills; methods which prevent conception are another issue.
  (16) We oppose the death penalty.
  (17) The executive board shall be empowered to endorse legislation regarding RICO laws to prevent their abuse in cases involving no monetary gain (such as has happened with suits brought against pro-lifers).
  (18) We take no position on homosexuality, on purely religious issues, military issues, or any other issue which is unrelated to our central concerns.
  (19) We take no position on rescues.
  (20) Consistent with our philosophy of the interrelatedness of human beings, and particularly the obligation of parents to ensure the physical, mental, and emotional well-being of their children, we support laws encouraging parental involvement when a minor seeks an abortion.
  (21) The idea of population control is a way of blaming women's natural child-bearing ability for problems actually caused by greed, carelessness and ignorance.  We see the violence of killing children or forced sterilization asunconscionable and we support non-violent solutions to environmental problems.
  (22) We affirm that women are responsible for the well-being of their pre-natal children and should avoid abusing drugs.  Punitive measures, however, are counterproductive and may actually encourage abortion and avoidance of treatment.  We call on drug treatment providers to give priority to pregnant women, and support laws that mandate such treatment.
  

  --
  Apologies in advance for the length in rambling nature of the post, its been a long, long day.
  

  by allwrits on Mon Jul 25, 2005 at 01:16:14 PM PDT

•  I gotta admit this is taking me two ways.

  Obviously a justice who recuses himself under these circumstances is unacceptable, he'd spend 3/4 of the time on the sidelines, ie. he can't do the job.

  On the other hand, the fact that he's willing to admit this is admirable IF he does it under oath during confirmation hearings.

  I like to give everyone the benefit of the doubt when I can, but what with the lack of record to look at, the timing of his nomination and the administration's track record of using every single opportunity to push a blatantly partisan agenda, I can't see letting this guy slide without really dissecting the crap out of him under the microscope.

  Btw, the guy has been a judge for about 2 years right?  Isn't the job posting for a judgeship?  A guy with 2 years of job experience in the ACTUAL job is the best we can come up with for the most important court position in the country.  I know we keep hearing about his sharp bright legal mind but aren't there any judges that have the same type of mind?  Out of the gate this makes me leery of this nomination.  

  Maybe he does have a lot of experience but to my mind "arguing" cases is different from "judging" cases.  I'm not a lawyer but I'd like to point out that neither is the damn president.

  by will freeman on Mon Jul 25, 2005 at 01:17:06 PM PDT

•  So he's outed himself as partial

  and it works for me... you cannot approve a jurist unable to be impartial.

  by NYFM on Mon Jul 25, 2005 at 01:17:59 PM PDT

  •  BINGO - he's admitted he can't be impartial

    this should be used against him like crazy.  it's just not possible to foresee the myriad ways in which cases you must decide implicate his Catholic beliefs.  he has just ADMITTED that he cannot be impartial when his Catholic beliefs are implicated.  as such, he is just not an appropriate candidate for SCOTUS, since he will, admittedly, be unable to be impartial - or to hear or decide - those cases in which his religious beliefs are or may be implicated.

    based on this admission, his nomination has to be denied.  

    by LegalSpice on Mon Jul 25, 2005 at 01:31:09 PM PDT

•  Just to rephrase his comment

  "if the law required a ruling that his church considers immoral. Roberts [...] would probably have to recuse himself."

  In other words, he's saying that he would never make a ruling that would go against the doctrines of his church.

  Interesting....

  by bread on Mon Jul 25, 2005 at 01:18:58 PM PDT

•  Sorry, I have to disagree with the way this is