MaxedOutMama
Monday, July 25, 2005
John Roberts The Catholic
Hat Tip Betsy's Page. Dick Durbin asked John Roberts what he would do if the law required him to rule in a way that the Catholic church considered immoral according to the LA Times:
I think Durbin may be getting into deep constitutional water here. As to abortion (which the LA Times implies is the main issue), the truth is that nothing about a woman's right to abort a pregnancy is explicitly stated in the Constitution, and many judges who privately feel women should have the right don't think Roe V. Wade was decided correctly as a matter of law. It certainly was a stretch of the Constitution, at any rate. So if Roberts did fail to uphold Roe V. Wade, he would have a perfectly valid legal rationale, and it is one that other judges on the court share.
If a question such as this is only asked with reference to religion (and not the individual's conscience) then I think it would violate the "no religious test" contained in Article VI of the Constitution:
UPDATE: The Anchoress has a few things to say:
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....Well, isn't there a more general question that Durbin should have asked? What would anyone do in a case in which their public position required them to do something they considered dead wrong? Isn't it a fact that in many cases judges have ruled as they have because they considered an opposite ruling would lead to a wrong moral result? Frankfurter talking about "shock to the conscience" comes to my mind.
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).
I think Durbin may be getting into deep constitutional water here. As to abortion (which the LA Times implies is the main issue), the truth is that nothing about a woman's right to abort a pregnancy is explicitly stated in the Constitution, and many judges who privately feel women should have the right don't think Roe V. Wade was decided correctly as a matter of law. It certainly was a stretch of the Constitution, at any rate. So if Roberts did fail to uphold Roe V. Wade, he would have a perfectly valid legal rationale, and it is one that other judges on the court share.
If a question such as this is only asked with reference to religion (and not the individual's conscience) then I think it would violate the "no religious test" contained in 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.But if the question is asked in the generic form with reference to an individual's conscience (and don't try to lie and tell me that an atheist or an agnostic doesn't have one), can you imagine any thoughtful person who would not have to answer something along the lines of Roberts' answer? The people have the ability to amend the Constitution, so a judge is not in control of that document. I can't think of anyone who believes in actually enforcing the Constitution as it is, rather than their idea of what the Constitution should be, who might not, at least theoretically, run into such a dilemma. I don't think we want to confine ourselves to the thoughtless, the liars or the people who believe they can make it up as they go along.
UPDATE: The Anchoress has a few things to say:
In other words, One may be religious so long as one agrees to live the age throughout one’s faith, and not the other way around.Read the whole thing! And she links to Cassandra of Villainous Company, who simply must be read:
Are we now willing only to confirm those who affirm nothing? Who have no "settled judicial philosophy"?Do you want someone on the bench who doesn't have a conscience? I don't. I want them to interpret the law as it is written, but I want them to do so with a heart and fully engaged mind. The US Constitution as it stands now is a pretty noble document, but once it mandated returning slaves to their owners.... I'm not sure I could have done that. All I can say is that this answer vastly improved my opinion of Roberts, because it would have been easy for him to evade or maneuver, and instead he took it seriously. So Carl at No Oil For Pacifists has made a firm convert!
Who will rid us of these inconvenient principles?
Comments:
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It's almost as if they are trying to establish a premise that you can only trust religious people are doing the right thing when they rule against their religion and any decision that does not contradict it is then suspect. If they get away with it the conclusion is of course that religious people will not be allowed on any authoritative body.
Like so many things it appears to me they are trying to find a way to say it that sounds pleasing as long as you don't really try to understand what was said.
Like so many things it appears to me they are trying to find a way to say it that sounds pleasing as long as you don't really try to understand what was said.
# posted by 
: 2:10 PM
: 2:10 PM
That was definately the wrong answer and just gave his critics a whole lot of ammunition. Ruling on a case one way or the other because you think it is morally right or wrong is a whole different boat than ruling on a case because of a church edict. I think you are also confusing "interpretation" with "required."
Dingo, no, it was the LA Times that was applying it to abortion.
I can imagine a scenario in which the US Constitution was amended in a way that was truly noxious and that the SC justices would be stuck with enforcing it. Every judge is going to have to make some rulings that disturb his or her feelings - I've read judges writing rather strongly against federal mandatory sentencing, for example. But I can imagine a situation in which somebody slipped something in that you truly thought was the law of the Constitution, but that conscience forbade.
For instance, do you remember Sensenbrenner's nasty little proposal to criminalize not reporting drug dealing? Both you and I thought it was wrong.
If I were ever on a jury, I probably would simply refuse to vote someone guilty. But if I were a judge, that would not be an option. I don't know what I would in a situation like that, to be honest.
I can imagine a scenario in which the US Constitution was amended in a way that was truly noxious and that the SC justices would be stuck with enforcing it. Every judge is going to have to make some rulings that disturb his or her feelings - I've read judges writing rather strongly against federal mandatory sentencing, for example. But I can imagine a situation in which somebody slipped something in that you truly thought was the law of the Constitution, but that conscience forbade.
For instance, do you remember Sensenbrenner's nasty little proposal to criminalize not reporting drug dealing? Both you and I thought it was wrong.
If I were ever on a jury, I probably would simply refuse to vote someone guilty. But if I were a judge, that would not be an option. I don't know what I would in a situation like that, to be honest.
Tommy, I think they are just looking for something with which to impugn him.
I don't think it would be politically wise to go after someone for being Catholic, though.
But I do think that this is shading into a very questionable constitutional area.
I don't think it would be politically wise to go after someone for being Catholic, though.
But I do think that this is shading into a very questionable constitutional area.
I've said before and I'll say it again. The left has no problem with God- as long as God is answerable to man, rather than man remaining answerable to God.
I'm not so sure it was the wrong answer- the fact that he would recuse himself rather than cast a ballot- shows that his respect for the constitution is indeed, great. He would not allow his religious convictions to trump his legal ones.
I know, contrarian- but I think Americans would respect that.
I'm not so sure it was the wrong answer- the fact that he would recuse himself rather than cast a ballot- shows that his respect for the constitution is indeed, great. He would not allow his religious convictions to trump his legal ones.
I know, contrarian- but I think Americans would respect that.
That's the way I saw it too, SC&A. And the religious people I fear are usually the ones who feel as if God is answerable to man, not the other way around.
I don't think it's contrarian, either. There are lots of things I think are wrong in society, but acting unilaterally to right them is not generally the way to go. That's the terrorist's idea of how society should work. They're right, we're wrong, and we must either go to the wall or concede. Not a pretty picture.
I don't think it's contrarian, either. There are lots of things I think are wrong in society, but acting unilaterally to right them is not generally the way to go. That's the terrorist's idea of how society should work. They're right, we're wrong, and we must either go to the wall or concede. Not a pretty picture.
Great post, MoM. His answer impresses me too. I do think it shows his respect for the Constitution, which I appreciate a lot. I still fear this is going to get ugly.
Thanks for your beautiful words of comfort on my blog. Much appreciated. I will share them with my friend when I think she's...open... to hearing it. Poor thing.
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Thanks for your beautiful words of comfort on my blog. Much appreciated. I will share them with my friend when I think she's...open... to hearing it. Poor thing.
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