I can’t say I’ve ever found him especially impressive, even when he was “on our side” during impeachment. His latest piece does not change my impression.
Here’s Turley: “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).”
Turley defines the issues so vaguely that he can’t see how rare and hypothetical a case this would be. Let’s consider the death penalty and abortion. Let’s say Americans had enacted a constitutional amendment declaring, “Abortion shall be legal from conception through birth.” No serious person maintains that it would be wrong for a Catholic judge to say that this amendment was the law.
Nor should an opponent of the death penalty have any difficulty saying that the death penalty is constitutional. Benedict has said nothing even remotely suggesting that a jurist who did so would be obstinately persisting in grave sin and thus ineligible for communion.
If the law were such that a judge would be implicated in the evil (stipulated for this post) of abortion or capital punishment–perhaps the judge would have to rule in a way that forced someone to have an abortion–then a question of recusal or civil disobendience from the bench would arise. But we are very far from having such unjust laws.
Note that a very similar problem would arise for anyone who a) believed that it would be wrong to obey a law that commanded him to commit an injustice and b) found himself in a situation where the law seemed to require him to commit an injustice. There’s nothing in particular about being a Catholic, or a judge, that would make this problem worse.
I think Democrats would be unwise to follow Turley’s advice and make this an issue, but if they do I think it would redound to their discredit.
Finally, Durbin is perhaps not the best guide to navigating the demands of morality in public life. Here is a man who went from supporting a Human Life Amendment to the Constitution to supporting partial-birth abortion in six years. No doubt there was a difficult moral struggle in between.