Monday, July 25, 2005

Why is Senator Durbin even raising the question of Judge Roberts faith and what he would do if a question came up that caused a conflict between what the law required and what his faith said? Does Durbin ask this question of everyone nominated to the bench or only Catholics? We all know that this is code for abortion and perhaps capital punishment. Since Roberts has said in his appellate confirmation hearing that he believed that Roe was settled law, that implies that, as an appellate judge he was willing to uphold laws that he perhaps might have disagreed with based on his faith. I disagree with Jonathan Turley that Roberts gave the wrong answer. If there were such a case, which I don't think abortion is since you could disagree based on reasons other than the Catholic faith, recusal seems a fair option.

I wonder if a Jewish or Muslim candidate came before the Senate for a foreign policy post, if Durbin would question the candidate about conflicts of faith. I just think that this is a road down which we do not want to go. There has been too ugly a history in our country of anti-Catholicism and I hate to see that reflected in the Senator's question.

UPDATE: Brit Hume just said on Fox that Dick Durbin has said that the conversation didn't take place exactly as Jonathan Turley reported. According to Durbin's office, Durbin said that he and Roberts share the same faith and he asked if Roberts had ever experienced a conflict with his faith. Roberts said no, but didn't say anything about recusing himself. Turley reports that he got his version of the conversation from two sources who were present at the meeting. That sounds like Durbin's aides, I would think.

I bet that Durbin's office has been getting lots of calls about this and wanted to rush out a statement making the conversation seem more innocuous.

I didn't know that Durbin was Catholic but I don't think that makes a difference. The reason why Durbin would ask any question that touched on Roberts' faith is because Roberts is known to be very devout. Remember, questions about a person's "deeply held beliefs" is code for asking about abortion. Clearly, there are many prominent and not-so-prominent Catholics who are pro-choice. Think Cuomo, Kennedy, Kerry, and Durbin. So, the question is directed at someone who follows the beliefs as enunciated by the Vatican on issues like abortion.

I don't know if, in his two years on the bench, Judge Roberts has had to rule on appeals in capital punishment cases, but if he had upheld death sentences, that would be an example where the teaching of his Church diverges from American law.

The Democrats tried to pull this stuff with Judge William Pryor. Remember Schumer wondering if Pryor's deeply held beliefs would conflict with his enforcing the law. That had to be one of the more shameful reasons that the Democrats gave when filibustering Bush's judicial nominees. Do we really want to exclude people with "deeply held beliefs" from serving on the bench? Should the call go out that only those with beliefs held shallowly need apply?

David L. and Maxed Out Mama in my comments section remind us of Article VI of the Constitution.
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

You know, there must be times in every judge's career when a case comes up that he or she feels strongly about one way but also knows that the law requires a ruling in the other way. Justice Scalia's vote in Texas v. Johnson, the flag burning case comes to mind. He has spoken about how he abhors flag burning but does believe that it is protected speech. Judges must have deeply held beliefs on all sorts of issues unrelated to religion but they should not be judging based on their beliefs, just the law.

That is why it seemed so very stupid for David Broder yesterday to be worrying that John Roberts hadn't seemed to have suffered enough or lived in the real world or been unlucky or whatever it was that Broder was worried about. What should it matter if he can or cannot relate to someone who has lived life in the school of hard knocks. The law shouldn't be different for the rich person or the poor person.

That is one of my own deeply held beliefs.