"The Faith Of John Roberts"

[Stuart BUCK]

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 <bpardee at unlnotes.unl.edu>
>Reply-To: Law & Religion issues for Law Academics 
><religionlaw at lists.ucla.edu>
>To: religionlaw at lists.ucla.edu
>Subject: "The Faith Of John Roberts"
>Date: Tue, 26 Jul 2005 10:23:50 -0500
>
>Interesting article in the LA Times about how John Roberts would handle a
>situation where the law requires him to issue a judgment that violates the
>teachings of his faith.  If their account of the conversation is true (and
>we all know the mainstream media ALWAYS gets its facts straight before
>talking about faithful Christians, right? *rolls eyes*), then their
>concern is a valid one.
>
>http://www.latimes.com/news/printedition/opinion/la-oe-turley25jul25,1,3397898.story?ctrack=1&cset=true
>
>
>Brad
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