Jonathan Turley has an op-ed about Supreme Court nominee John Roberts in this morning’s Los Angeles Times. The op-ed turns out to be not only silly, but factually wrong to boot.
[I]n a meeting last week, [Judge John G.] Roberts briefly lifted the carefully maintained curtain over his personal views. In so doing, he raised a question that could not only undermine the White House strategy for confirmation but could raise a question of his fitness to serve as the 109th Supreme Court justice.
The exchange occurred during one of Roberts’ informal discussions with senators last week. 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.
It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer.
Turley wrote that two people who attended the meeting said Roberts was asked by Durbin what he would do if the law required a ruling that his church considered immoral.
“Roberts … answered after a long pause that he would probably have to recuse himself,” Turley wrote.
Durbin’s office had no immediate comment, but later in the day a spokesman said the column was wrong.
It seems that editors did not bother to fact-check the assertion that was the entire premise of Turley’s piece.
Which leads to an interesting contrast. The guidelines for running an “Outside the Tent” piece, which is critical of the paper, state the following:
These pieces must deal with facts and be supported by evidence. Reasoned opinion is fine. Please don’t repeat rumors or offer speculation on matters that can’t readily be verified with a reasonable degree of certainty.
Evidently the L.A. Times imposes a higher standard for criticism of the paper than it does for criticism of John Roberts.
In any event, Turley’s op-ed was silly to begin with. The reasons are set forth in the extended entry.
Roberts repeatedly explained during the confirmation hearings for his current judgeship that he would be able to apply the law — including Roe v. Wade — regardless of any personal beliefs he might have. For example, in Vol. 1 of his hearings at p. 419, Roberts responded to a question by saying:
The Supreme Court’s decision in Roe is binding precedent, and if I were to be confirmed as a circuit judge, I would be bound to follow it, regardless of any personal views. Nothing about my personal views would prevent me from doing so.
(My emphasis.) Roberts had similar responses at pages 427-429 and 433.
If Roberts feels bound to follow proper legal principles in applying Roe as a lower-court judge, there is no reason to believe that he would not feel bound by proper legal principles in ruling on the validity of Roe as a Supreme Court Justice.
In addition, ruling out Roberts as a nominee because he is a Catholic would not only be wrong, it would go against the Constitution. I can’t say it any more eloquently than Ninth Circuit Judge (and Catholic) John T. Noonan already has. When pro-abortion activists asked Judge Noonan to recuse himself from a case implicating abortion rights, Noonan rejected the request in a brief and thoughtful opinion. Here is Judge Noonan’s order denying the recusal request:
The Constitution of the United States, Article VI, provides: “no religious Test shall ever be required as a Qualification to any Office or public trust under the United States. ” The plaintiffs in this petition for rehearing renew their motion that I recuse myself because my “fervently-held religious beliefs would compromise [my] ability to apply the law.” This contention stands in conflict with the principle embedded in Article VI.
It is a matter of public knowledge that the Catholic Church, of which I am a member, holds that the deliberate termination of a normal pregnancy is a sin, that is, an offense against God and against neighbor. Orthodox Judaism also holds that in most instances abortion is a grave offense against God. The Church of Jesus Christ of Latter-Day Saints proscribes abortion as normally sinful. These are only three of many religious bodies whose teaching on the usual incompatibility of abortion with the requirements of religious morality would imply that the plaintiffs’ business is disfavored by their adherents. See Theresa V. Gorski, Kendrick and Beyond: Re-establishing Establishment Clause Limits on Government Aid to Religious Social Welfare Organizations, 23 Colum. J. l. & Soc. Probs. 171 (1990). If religious beliefs are the criterion of judicial capacity in abortion-related cases, many persons with religious convictions must be disqualified from hearing them. In particular, I should have disqualified myself from hearing or writing Koppes v. Johnston, 850 F.2d 594 (9th Cir. 1988), upholding the constitutional rights of an advocate of abortion.
True, the plaintiffs qualify my beliefs as “fervently-held” as if to distinguish my beliefs from those that might be lukewarmly maintained. A moment’s consideration shows that the distinction is not workable. The question is whether incapacitating prejudice flows from religious belief. The question is to be judged objectively as a reasonable person with knowledge of all the facts would judge. Moideen v. Gillespie, 55 F.2d 1478, 1482 (9th Cir. 1995). As long as a person holds the creed of one of the religious bodies condemning abortion as sinful he must be accounted unfit to judge a case involving abortion; the application of an objective, reasonable-person standard leads inexorably to this conclusion if the plaintiffs’ contention is supportable. No thermometer exists for measuring the heatedness of a religious belief objectively. Either reli gious belief disqualifies or it does not. Under Article VI it does not.
The plaintiffs may object that the disqualification applies only to cases involving abortion; they are not disqualifying Catholics, Jews, Mormons and others from all judicial office. This distinction, too, in unworkable. The plaintiffs are contending that judges of these denominations cannot function in a broad class of cases that have arisen frequently in the last quarter of a century. The plaintiffs seek to qualify the office of federal judge with a proviso: no judge with religious beliefs condemning abortion may function in abortion cases. The sphere of action of these judges is limited and reduced. The proviso effectively imposes a religious test on the federal judiciary.
P.S. Beldar has more.
UPDATE: Prof. Bainbridge says:
Patterico thus errs in commenting on this issue, IMHO, by conflating the standards by which senators make their assessments in the exercise of their Constitutional role to give advice and consent to judicial nominees and those by which judges must recuse themselves in the context of specific cases. Hence, Judge Noonan’s eloquent refusal to recuse himself from abortion cases, which Patterico quotes, strikes me as inapposite.
It strikes me as perfectly apposite. I’ll let you, the reader, decide who is right: Prof. Bainbridge, or me.
UPDATE x2: This New York Times piece quotes Turley as saying that he got his account of the meeting straight from Durbin. This may reveal Turley’s grossest error yet: believing Durbin.