Jonathan Turley is troubled, in an op-ed for the Los Angeles Times, by how Supreme Court nominee John Roberts reportedly answered a question by Sen. Dick Durbin. Durbin is, like Roberts, a Catholic, but one who has no trouble ignoring his church's teachings on abortion while he serves in the Senate. Turley describes Durbin as asking Roberts this howler of a theoretical question: What would Roberts do if "the law required a ruling that his church considers immoral"?
Rather than dismissing the question as assuming too much about what the law requires, Roberts attempted an answer.
Turley picks up the narrative:
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).
Turley makes a fair point when he says Roberts is among "a new generation of post-Bork nominees, young conservatives who have been virtually raised on a hydroponic farm for flawless conservative fruit. They learned to confine their advocacy to legal briefs so that their true views are only known to the White House and to God."
He also writes:
This is not a question driven by ideology. I favor some of the conservative changes that Roberts is expected to bring in doctrine, and I believe that he has excellent qualifications for the position. I also believe that the president is entitled to such a conservative nominee.
The question of recusal raised with Durbin reflects a serious and important debate occurring within the Catholic community, in which I also was raised. It is the classic Sir Thomas More conflict of trying to serve both God and king. However, these are questions not just for a nominee to ponder but for senators.
Turley argues his points well, though I do not share his confidence that "The burden may now have shifted to the White House" to answer the question of "Who is John Roberts?"
The more interesting question is why Durbin's impertinent question would be taken as honest political discourse -- much less associated with a saint who died for keeping his priorities clear.
Update: The indispensable David Kirkpatrick of The New York Times reports today that a spokesman for Durbin has taken issue with Turley's description of the Durbin-Roberts meeting. Turley maintains that his description came directly from Durbin.