Jonathan Turley, writing in the LA Times, recounts a meeting between Judge John Roberts and Senator Dick Durbin where Durbin posed a difficult question to the Supreme Court nominee:
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.
Too bad Roberts didn't think to respond by saying to Sen. Durbin, "That's a great question, senator. How did Justice Ginsburg answer it?"
Having chosen to answer it he might have said simply that the task of a Supreme Court justice is to interpret the constitution, not to pass judgment on its moral character. Should a question of capital punishment or abortion come before the court it is the justices' job to determine which side of the case conforms most closely to the original intent of the framers. Whether that intent conforms to the teaching of one's religion is irrelevant to the Court's task.
It is indeed telling that Durbin would ask this question. It reveals his tacit conviction that it is the role of the justice to create law rather than to interpret it. Were that really the case any conflict between the teaching of the church and the decisions of the court would be a much more acute problem. As it is the problem is more in Durbin's philosophy of jurisprudence than with judge Roberts' religious convictions.
UPDATE: The Washington Times reports that Sen. Durbin is denying that he ever asked the question, and Jonathan Turley is responding that Sen. Durbin was his original source:
Minority Whip Richard J. Durbin, Illinois Democrat, asked ... specifically what the judge, who is Catholic, would do if the law required him to do something that his church teaches as immoral, according to a column that appeared in yesterday's Los Angeles Times. But when the column drew criticism as a religious litmus test, Mr. Durbin's spokesman said the column was wrong, prompting writer Jonathan Turley to say that he learned of the exchange from Mr. Durbin.
We leave it to the reader to decide who, the politician or the journalist, is not telling the truth. Gosh, what a choice.
