"The Faith Of John Roberts"

[Paul Horwitz]

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" <stuartbuck at msn.com>
>Reply-To: jsbuck at post.harvard.edu,        Law & Religion issues for Law 
>Academics <religionlaw at lists.ucla.edu>
>To: religionlaw at 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 <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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