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Tuesday, July 26, 2005

Can a (Yuk!!!!) Catholic Uphold the Constitution?

There seem to be increasing doubts, among many on the political left, that U.S. Catholics are sufficiently respectful of America's constitutional system to be able to serve on the U.S. Supreme Court. There are, of course, partisan reasons for this. The ongoing efforts to find something wrong with President Bush's current choice for the vacancy on the Court, John Roberts, have failed to uncover anything sufficiently damning to give Democrats a pretext for filibustering his nomination or turning moderate Republicans against him. Hence the focus has turned—rather desperately, I think—to his religious beliefs and the beliefs of his wife.

This past weekend, the New York Times reports, Illinois Senator Dick Durbin asked Judge Roberts directly whether he could uphold the Constitution.

"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. Whatever the conversation in the senator's office on Friday, Mr. Durbin's question hit the fault line between liberal anxiety about theocratic intolerance and conservative fears about hostility to religion."

Durbin, however, would not confirm Turley's claim, and an aide cast doubt on the professor's interpretation of his conversation with Sen. Durbin, according to the Times:

"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.'"

What I find fascinating here is the readiness to believe that membership in a church that has 65 million members in this country is sufficient to cast doubt on a person's devotion to their nation's constitutional principles. The Times story reports, however, that at least one major political activist on the left finds that conclusion to be unfair:

"Ralph Neas, president of People for the American Way said, conservatives were 'laying a foundation or somehow setting up a dynamic that if you are against John Roberts you are somehow anti-Catholic, and that is just pure poppycock.'"

But if there's nothing else particularly wrong with him, and people keep asking him about his religious beliefs, and then they say that they oppose confirmation of him for the Supreme Court, one can hardly blame Catholics for concluding something from that.

Unless, of course, it is all about abortion after all.

It would seem unwise for politicians in most states to offend Catholics by using religion as a stalking horse for abortion opinions.

In which case, I should respectfully suggest that the opponents of Roberts' confirmation simply come out and say that they will oppose any nominee who does not explicitly say that he or she will support Roe v. Wade with no alterations and no exceptions. Then, let the voters decide what to do about it when Senators from both sides of the argument face reelection. That is how a representative democracy is supposed to work, isn't it?


Hunter Baker said...

This whole game is an absurdity. Can you imagine the spectacle of a bunch of southern senators quizzing judges about whether they'd uphold Plessy v. Ferguson because after all, it is the constitutional standard?

James F. Elliott said...

I like how you omitted the part where Antonin Scalia, an arch-Catholic, criticized Roberts for saying he would step aside. Scalia stated that Roberts job is to interpret law, not answer religious or moral questions, and he should be able to set aside his religious convictions in order to fulfill his duty.

Tlaloc said...

"This whole game is an absurdity. Can you imagine the spectacle of a bunch of southern senators quizzing judges about whether they'd uphold Plessy v. Ferguson because after all, it is the constitutional standard?"

Lets take an alternate example, suppose a very strict Islamic Imam was up for the supreme court bid. Do you really think there wouldn't be people asking if he could support the law of the land when he follows a religion that explicitly calls for an entirely different legal basis?

I don't think Roberts should be castigated for being a catholic but frankly a lot of this persecution complex on the part of people more than willing to persecute others is nauseating.

In other words if the Catholic Church hadn't spent so much time and money trying to influence american politics maybe it wouldn't be an issue, but since they did they bear more than a little of the blame for making religion a political question.

S. T. Karnick said...

"I like how you omitted the part..." That was not in the article from which I quoted.

James F. Elliott said...

Or, let's put it another way:

Members of the Catholic clergy, including the new Pope, have stated that American politicians and officials who support the right to choose in their professional life be denied communion in their religious life. Communion is fairly critical to being a Catholic. So, that's a pretty harsh threat to be levying against people, all with the goal of intruding their faith into their secular positions.

Asking a man or woman if they can set aside the strictures of their faith if they come into conflict with the job (i.e. deciding a case based on the facts and the law) that they are being hired for isn't unreasonable. It's basically asking someone if they can do an aspect of their job even if they find it personally distasteful.

You can fulfill all duties of your job, or you can decide not to have the job. It's pretty simple, and it's not a special case. It's like a district attorney who believes in medicinal marijuana but who must follow the law and prosecute offenders. His duties override his personal feelings. It's no different for a judge. It's called bias, and it's important.

S. T. Karnick said...

Mr. Elliott: could you provide a source for this statment of Scalia? I cannot find it through an internet search.

As to the substance of the reported Scalia statement, given that Roberts evidently did not say that he would recuse himself from cases involving matters on which the Catholic Church has taken policy positions, the criticism you alluded to would have been entirely unfounded, being that it was based on an erroneous press report. I am sure that Justice Scalia would feel obliged to retract it if he were made aware that the premise was untrue.

James F. Elliott said...

I believe it was in the LA Times article your post mentioned. It might have been in The New Republic. I'll check.

James F. Elliott said...

I'd like to say that I have no problem with Roberts. He seems like a conservative, yes, and that's a failing, but not a particularly evil one. :)

Both Cass Sunstein and Jeffrey Rosen have given him a thumbs-up, and that's good enough for me.

Tlaloc said...

I feel much the same way. I was generally pleased that Bush didn't (or couldn't) get someone far out to the right nominated. Barring any big skeletons in the closet I see no reason Roberts shouldn't pass the senate.

James F. Elliott said...

Aha, I was both right and wrong. The quote did indeed appear in the Jonathan Turley piece in the L.A. Times. However, Scalia was not referring to Roberts directly. It was a statement he made last year chastising fellow Catholic justices for being unwilling to apply the death penalty because their faith is opposed to it.

"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."

The larger point still stands.

S. T. Karnick said...

Thanks for the clarification on the Scalia quote—I had indeed suspected that it might be the one he made last year.

Tom Van Dyke said...

"Unless, of course, it is all about abortion after all."

Of course. And even Ruth Bader Ginsburg acknowledges that Roe is bad law, although she certainly agrees with its result and so would not vote to overturn it. Roe hangs on this thread.

O'Brien holds up four fingers and asks Winston how many fingers he is holding up. Winston answers four. O'Brien asks what were to happen if the Party said five.

Do you think Roe was properly decided, Mr. Roberts?