/* trackback code -- i added this */

Monday, July 25, 2005

Faithful Recusal?

This op-ed by GW Law professor Jonathan Turley is certainly worth a read. Look in particular at this excerpt:
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.
This is a very worrying thing to hear. Turley writes further that
It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer. In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States. A judge's personal religious views should have no role in the interpretation of the laws. (To his credit, Roberts did not say that his faith would control in such a case).
Assume that Roberts is serious.

At what point does he mean to recuse himself from issues that might lead to a conflict between his faith and his reading of the Constitution? Before, during, or after discussion of whether to grant cert, receipt of briefs, oral argument, conference, or opinion writing and circulating?

Suppose he intends to recuse himself only at the conference stage (where initial votes are taken on the issue at hand) or afterward. Then this will be the situation: when Roberts feels his faith and his reading of the Constitution and/or statutes are in agreement, he will vote on a case; when he feels his faith contradicts his reading of the law, then he will not vote.

Why does this matter? For one, it suggests that we will have a part-time Justice. For another, it suggests that the time when he does participate in the earthly pursuits of the Supreme Court, his judgments will be skewed in favor of a particular religious point of view. This is hardly a Justice, much less justice, for all Americans. You don't have to agree with a Justice's reading of the Constitution and the law to believe that taking seriously the practice of jurisprudence requires that the Constitution and the laws must take precedence over an individual's personal policy preferences. Isn't that what Justice Scalia has been claiming all these years?

Here's another reason why Justice Roberts's apparent plan of recusal matters: when the Supreme Court deadlocks on an issue 4-4, lower courts' decisions are automatically affirmed, but (I think) no nationwide precedent is created. That means that as long as Justice Roberts sits on the bench, some issues may simply go unresolved, with conflicting federal laws in various regions of the country.

This is probably why Justice Scalia last year said that
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.
I'd be most interested to hear opinions from those with a Con law background, especially regarding the question of whether Roberts's apparent position has been taken -- and followed -- by other Justices or judges.

But at the moment, I don't see how Roberts can really be serious about this. And if he is, I don't see how the Senate can confirm him.

Update: In today's briefing, Scott McClellan says the following:
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. [Emphasis added
Update 2: This AP article says that Durbin's office initially refused to comment about Turley's column, "but later in the day a spokesman said the column was wrong." Curious. I'd sure like to know more about the "two people who attended the meeting" to whom Turley sourced his information. And I'd like to see someone get Durbin, rather than a spokesman, on the record. That said, I sure hope that Roberts never made that statement.


Anonymous bu$h ate my baby said...

I think this is a reasonable analysis of a potential issue should this indeed be Roberts' position, and one that could be further explored in his confirmation hearing.

With regard to the following: "Here's another reason why Justice Roberts's apparent plan of recusal matters: when the Supreme Court deadlocks on an issue 4-4, lower courts' decisions are automatically affirmed, but (I think) no nationwide precedent is created." This is in essence correct. Whenever the Supreme Court declines to grant cert, the appealed ruling will stand. A similar result would obtain if the Supreme Court deadlocked. Often, the Supreme Court will hear a case in order to resolve a conflict among appellate courts -- say a Ninth Circuit ruling conflicts with a ruling from the Court of Appeals for the DC Circuit. But sometimes the SC will not hear a case that would resolve such a conflict, in which case yes, the circuit split would continue.

Also, one minor note -- the Supreme Court will grant cert based on 4 votes.

7/26/2005 9:15 AM  
Blogger Jonah B. Gelbach said...

Peter -- thanks for this. I appreciate the info from someone who knows.

I did know that they grant cert with 4 votes -- I should have been clearer on my point regarding circuit splits that I was referring to cases in which cert has been granted, with the SC result being a 4-4 deadlock.

7/26/2005 10:18 AM  
Blogger strategery4 said...

By default, can't we safely assume that Turley's two sources were . . . Scooter Libby and Karl Rove. I mean, apparently they are willing to "confirm" any rumor that might be floating around in the ether.

On the substance, agree with you 100% -- this I'd-have-to-recuse-myself-if-my-morals-conflict-with-the-law business is indistinguishable from the supposedly accursed "legislating from the bench."

7/26/2005 8:29 PM  
Blogger Jonah B. Gelbach said...

Hallelujah! The return of stategery4!


7/26/2005 8:32 PM  
Blogger strategery4 said...

Yeah, sorry -- on vacation this week so it's been a bit harder to goof off and comment. But as Clinton used to say: "We can do better."

7/27/2005 2:09 AM  

Post a Comment

Links to this post:

Create a Link

<< Home