Bench Memos

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Durbin’s Dilemma


I tend to agree with Wendy with regards to Senator Durbin’s question to John Roberts: “What would you do if the law required a ruling that your church considers immoral?” What a strange question. It would not be strange to ask Roberts (or any judicial nominee, for that matter): What would you do if giving judgment in accord with the law would make you complicit in injustice? Possible answers range from: give judgment anyway to lying about what the law requires (the lesser of two evils, perhaps) to recusal to resignation from the bench. Or, a nominee could say: “Sorry Senator, nice try. But I do not imagine that such a conflict would arise in the course of my duties.” Roberts (or any other nominee) might add, too, that he is only responsible for conflicts arising in his conscience, and does know what else the senator could be asking about.

What could be the issue if instead the nominee’s “church” considers some judicial act to be immoral? None, save perhaps awkward appearances–unless the nominee also holds the “church’s” view. In which case, we are back to the not-so-strange question sketched above.

Of course Senator Durbin may have been stalking other game. Perhaps he wonders whether Roberts actually believes what the Catholic Church holds to be true about, say, abortion or same-sex marriage. (Durbin may know some Catholic politicians who do not.) But does the senator really want to go there?


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