Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Monday, July 25, 2005

The Golden Boy Picks His Nose

Okay, that's probably not a terribly apt title, but it amuses me, and it's not wholly inapplicable. Armand tipped me off to an LA Times op-ed by law prof. Jonathan Turley (registration or BugMeNot required).

He relates an incident in which Judge Roberts let slip a veil on the relationship between his devout Catholicism and his burden as a federal judge:

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.

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).

(Disclaimer: I'm hesitant to let pass without criticism Turley's uncalled for superlative about how scripted this nomination, which barely has begun, actually is.)

Turley's right, however, that this raises serious questions: the Supreme Court, by design, consists of nine justices to minimize the likelihood of many even splits, the legal result of which is to affirm without precedential value the judgment of the court below. This Court is notoriously evenly divided, and Roberts' ascension would not radically change this dynamic in very many sensitive areas. One can easily imagine that, were he to find himself recusing on things like the death penalty and abortion, the Court would enter a period of relative ineffectiveness due to its inability to decide the close cases.

As we've seen lately, in the area of the death penalty in particular, the Court has labored to carefully hone legal standards to gird its evolution and application. And so I find myself in agreement with Justice Scalia on this occasion, who has said: "The choice for a judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty." Notice, of course, that Scalia left abortion out of that equation. Although I haven't the time, I could have sworn I read somewhere that Scalia, in a typically lawyerly quibble, distinguished the Church's encyclical on abortion from the something-other-than-an-encyclical on the death penalty, on the convenient and dubious footing that the latter are somehow advisory while the former are binding. Uh-huh. Of course.

While I'm at it, I'd like to note another unduly broad and tendentious comment from Turley's column:

For years, Roberts has been carefully groomed for greater things, one of 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.

They learned to confine their advocacy to legal briefs . . . ? In Roberts' case, might that have something to do with the fact that appellate experts live and die by the brief? And what evidence do we have that their true views are known to the White House? And what's with the snarky, less-than-subtle "God" addition.

Really, no one can credibly argue that aspirants to the high federal court learned some sort of lesson watching Bork get eviscerated on national television, but Bork was an academic whose stock-in-trade as such was the body of his articulate views. It's not like Roberts is the first non-career academic to be nominated to an Article III court. Furthermore, you can't have it both ways: on the one hand lambasting personal positions ostensibly discovered in idle footnotes in briefs composed for a client in the course of advocacy-for-hire, on the other faulting the nominee for only writing briefs and never stating his views in a peer-reviewed forum, notwithstanding that such fora are of little use to career litigators.

If Roberts won't feel capable of hanging in and deciding every case his constitutional obligation sets before him, I've got a problem with his nomination. But I've got an increasing problem with the sloppiness of the body of commentary endeavoring to demonstrate his unsuitability for the job. He's accomplished too much to deserve the spaghetti on the wall treatment. Yes, his comment that he might be forced to recuse is absolutely relevant, and absolutely should be addressed at his confirmation hearing. But for now let's leave it at that, and restrict our columns to similarly concrete matters instead of unrestrained, vaguely paranoid invective.

UPDATE: My first wave at this omitted some material from the blockquote at the top of the post. I've restored the missing material.


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