Patterico's Pontifications


Jonathan Turley Column: Silly — and Wrong

Filed under: Dog Trainer,Judiciary — Patterico @ 6:10 pm

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.

Turley claims:

[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.

According to Durbin’s office, it also didn’t happen. Turley had his facts wrong. A Reuters story (h/t: reader Golden Lover) reports that Durbin’s office has denied the claim made in Turley’s article:

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.

18 Responses to “Jonathan Turley Column: Silly — and Wrong”

  1. I agree there is no problem with Catholic judges simply because the Catholic Church considers abortion sinful. However I think there would a problem if the Catholic Church were to authoritatively declare that Catholic judges are religiously bound to rule a certain way on a particular case. This would in my opinion justify recusal.

    As for “no religious test” I think this means federal office holders should not be required to have any particular religious views. I don’t think it requires ignoring religious views which are clearly incompatible with the duties of the office. For example a pacifist secretary of defense.

    James B. Shearer (fc887e)

  2. Here’s the thing: Everybody has deeply held religious beliefs. Even an atheist has a belief about the nature of the universe, and it’s just as religious as that of any Catholic. But the cultural elites accord the atheist’s views the status of “objective,” as if it’s any more possible to prove the non-existence of God than his existence.

    Jan Bear (afb9f3)

  3. The atheist and the believer have much in common. Since the existence of God can neither be proved nor disproved, each must ultimately rest their belief on faith. An atheistic state is a theocracy too, a state based on a mandatory faith, excluding all others.

    In contrast, freedom of religion is the agnostic’s pt of view, one that says: I recognize that I do not know the truth for sure, therefore I consider and tolerate all ideas as potentially valuable.

    As for Roberts, then, of course he comes with beliefs of his own. Who doesn’t? The only real q is: would they, or would they not, prevent him from fulfilling his duties? Based on his record, they would not. Freedom of religion says: let the man judge.

    ras (f9de13)

  4. Firstly all of us have prejudices and beliefs that we act on every day. You buy food from stores and eat it, believing that the food is safe and nutritious. This may be true or not true, but you act on your beliefs without much thought as do I. To presuppose that someone should not act on their belief/prujudice would render everyones’ life unworkable in this modern world. Further there is a great risk when only widely held beliefs and prejudices are allowed in the market place because widely held beliefs can be just as wrong, evil or detrimental as those that are less common. It never ceases to amaze me how very narrow and conformist Liberals are. Secondly and more importantly is that this lie about Judge Roberts reflects the reporters prejudice against Catholics who take their religion seriously. Of course anyone who would be such a nut case as to believe in Catholicism would have to recuse himself/herself– so this bigoted reporter thinks. I am not a Catholic, but I certainly respect their point of view and would very much oppose restricting that point of view from the Supreme Court. If we can have Supreme Court Justices who are hostile to religion like Souter, Ginsburg, Stevens and most other Federal Judges, Then I think we very much need a judge who is seriously committed to a religion. Ask yourself this: why, when the courts are asked to remove christian religious symbols from government property under the establishment clause, do the courts invariably require the removal of those symbols rather that requiring that opposing views and other religious symbols be required or allowed? It is because the Federal Courts are hostile to religion, just as this reporter is.

    john (fb05db)

  5. Turley’s sources say one thing. Politician’s office issues a denial.

    And Patterico is absolutely certain that Turley was wrong because … Patterico was there?

    Ha ha.

    m.croche (8e3bfc)

  6. I set forth the reason in the post: Durbin’s office denies it. Now, perhaps Democratic Senator Durbin has an ulterior motive to deny a truthful story that might tend to weaken the nomination of a conservative by a Republican President. But I can’t figure out what it is — can you, Croche?

    Patterico (756436)

  7. Jan Bear, it is not true that everybody has deeply held religious beliefs. Some people change churches over minor things like bike paths.

    James B. Shearer (fc887e)

  8. A Religious Test?

    Did Senator Dick Durbin impose a religious test on SCOTUS nominee John Roberts? In the LA Times, Jonathan Turley claims that:Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his (af7df9)

  9. So, if I read these comments correctly, Article VI of the Constitution was written in order to facilitate religious discrimination, Paterrico is expected to be omnipresent before expressing opinions, Howard Dean has deeply held religious beliefs, and everyone is OK with the notion that Judges in the US base their decisions on their personal moral codes instead of the law and the Constitution (which apparenty is written in some sort of code where “shall not” means “go ahead”). Yeah, we’ve got the whole “democracy thing” down. Hey! Gluttony is a sin too! Anyone for bringing Michael Moore up on charges?

    Pat Rand (810775)

  10. “It seems that editors did not bother to fact-check the assertion that was the entire premise of Turley’s piece.”

    I’m shocked! Truly shocked. Who would have guessed that the LA Times could do something like that.

    Stu707 (ab2e74)

  11. Croche,

    A more likely scenario is that someone from Durbin’s office, probably Durbin himself but we can’t be sure, was deliberately using Mr. Turley to plant an unfounded rumor; i.e. a typical whisper campaign. I doubt Turley would’ve printed that detail w/out first believing that [Durbin] would back him, and he had to get that impression somewhere.

    But it sounds like someone forgot to tell Mr. Turley that this detail was “background only, please,” and the next thing they know they’re reading it in print, which of course has quickly led to its exposure as a falsehood and ended the damage it was intended to do. Worse for [Durbin], it will also serve to insulate Mr. Roberts from future whisper campaigns, much as Rathergate insulated Bush.

    Nothing left to do but let Turley take the rap; [Durbin] sure won’t.

    [Comment edited in three places to substitute Durbin’s name for Schumer’s, for the sake of clarity. — Patterico]

    ras (f9de13)

  12. Powerline sides with Turley, and believes Durbin lied, later, about a conversion he (Durbin) had with Turley in a green room. Makes sense to me.

    I agree with Jan Bear, except to add that many have deeply held quasi-religious beliefs. All of this deeply held beliefs vs. suitability as a judge business must have been sorted out endless times by all sorts of professional and non-professional legal thinkers over the last two hundred years. The precipitated conclusions by now must be that there can’t be descriminations against deeply held religious beliefs.

    Deeply held beliefs of the generally Christian variety made the Constitution possible in the first place.

    RJN (6ad6bc)

  13. Hugh and Power Line still conclude that Roberts didn’t really say this, which is my point. Why in the world would Durbin have his spokesman deny it if it really happened? Nobody — especially Croche — has been able to explain that one yet.

    Hewitt and Power Line phrase the issue as whether Turley made something up. They also seem to assume that Durbin must have been one of Turley’s sources. Both are the wrong way to look at this.

    Of course Turley didn’t make it up. Somebody said it to him. That person doesn’t have to have been Dick Durbin; it could have been a staffer. And yes, they could have said something untrue for various reasons.

    But even if Roberts did say it, it’s the right answer. Read Beldar for more. So I don’t care if Turley had the facts exactly right. He had the analysis exactly wrong.

    Patterico (756436)

  14. Patterico,

    Whoops, thx for the (amazingly prompt, I thought you had a life?) correction. What was I thinking?

    ras (f9de13)

  15. On vacation today and happened to be in front of the computer.

    Patterico (756436)

  16. The latest I read was that Turley got his information directly from Durbin. Who would you rather believe – Guantanamo Nazi Durbin or a member of the Fourth Estate. Hard choice but lawyer Turley looks good to me.

    Davod (51e146)

  17. Davod,

    I updated the post to reflect this.

    Patterico (756436)

  18. Patterico: “This may reveal Turleys grossest error yet: believing Durbin.”

    Patterico: “According to Durbins office, it also didnt happen. Turley had his facts wrong. A Reuters story (h/t: reader Golden Lover) reports that Durbins office has denied the claim made in Turleys article”

    [Right. And what you don’t seem to understand and can’t respond to (though I challenged you to) is the fact that Durbin’s office has zero motive to deny this if it actually happened. (By contrast, there was plenty of motive for Durbin to make it up in the first place. Turley should have been more skeptical.) So your pathetic attempt at a “gotcha” only reinforces my point. Thanks! — Patterico]

    m.croche (8e3bfc)

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