Recuse Me
Fables of the Strict Constructionist

Here's an interesting twist on Mister Roberts' SCOTUS nomination (via Arthur Silber commenting on Jonathan Turley in the LATimes):

Judge John G. Roberts Jr. has been called the stealth nominee for the Supreme Court — a nominee specifically selected because he has few public positions on controversial issues such as abortion. However, in a meeting last week, 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. 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). Let me rephrase the central point to emphasize the fundamentality of this issue: if Roberts views particular positions dictated by his religious faith as being on an equal footing with the demands of the Constitution and the laws of the United States—and would view the two as of equal significance as a Supreme Court Justice—that is a very, very serious problem. It is also a disqualifying problem. For a Supreme Court Justice, there must be only one ultimate authority: the Constitution and the laws. Period. The principle applies to any judge at all, but it is especially critical that a Justice of the Supreme Court hew to this standard. In this sense, Scalia’s observation that resignation is the only proper course for a judge who faces this dilemma is entirely correct.