The assumption driving the left’s desperate search for
information on the “personal views” of John Roberts is that
philosophical conservatism somehow conflicts with service on the
Supreme Court. This is an outrageously backwards assumption given
that the most formidable personal obstacle to a judge’s ability to
read the Constitution faithfully — if the last few decades are any
measure — is liberalism itself.
Those sniffing around for evidence of conservatism in the record
of John Roberts only reveal themselves as contemptuous of the
Constitution. That the Washington Post, for example, treat
Roberts’ possible membership in the Federalist Society as though it
had caught him out in a crime — it gave front-page coverage Monday to a story titled “Roberts
Listed in Federalist Society ‘97-98” — just exposes its bias
against constitutionally-minded judges.
So what if Roberts helped a group that is dedicated to promoting
judicial respect for the Constitution? That’s about as alarming as
learning that a nominee once took a college course on the
Federalist Papers. The Post’s parsing of Roberts’
connection to the Federalist Society — “Meaning of Word
‘Membership’ May Become Issue for High Court Nominee,” it declared
hopefully — would be called McCarthyite farce by liberals in
almost any other context. But they can’t stop themselves here,
huffing that even if Roberts wasn’t officially a member of the
Federalist Society what “matters is whether he hung out with them,”
as David Garrow, a law professor at Emory University, put it to the
Post.
As the Post was rifling through an old Federalist
Society directory supplied to it by radicals at the Institute for
Democracy Studies, the Los Angeles Times, also concerned
that a judge who actually understands the Constitution might get a
chance to apply it, indulged itself in another round of Catholic
baiting. In an op-ed titled “The faith of John Roberts,” law
professor Jonathan Turley questioned Roberts’s “fitness” for the Supreme
Court because he told Illinois Senator Dick Durbin last week, in
reply to a baiting and tendentious question, that he would “recuse”
himself should he face a case in which the law requires ruling
against a teaching of the Catholic Church.
“It was the first unscripted answer in the most carefully
scripted nomination in history,” writes Turley. “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.”
Unstated here is the liberal assumption that Catholicism and the
Constitution are inherently incompatible — an appalling and
ahistorical assumption given, among other reasons, that two
Catholics, Daniel Carroll and Thomas Fitzsimons, contributed to
writing the Constitution. Does Mr. Turley consider them to have
been unfit delegates to the Constitutional Convention? Had Carroll
and Fitzimons later joined the Supreme Court, would they have been
unfit to interpret correctly the Constitution they contributed to
writing?
The mainstream media like to find anti-Catholic Catholics — the
Ted Kennedys and Pat Leahys who don’t want any Catholics in public
life save heretical ones — to advance and sanitize their Catholic
baiting. So naturally Turley couches his question about Roberts’
“fitness” in the midst of offering his Catholic bona fides — “The
question of recusal raised with Durbin reflects a serious and
important debate occurring within the Catholic community, in which
I also was raised.” But all that this unctuous throat-clearing adds
up to saying is: only heterodox Catholics — those willing to
reject their religion in favor of a liberal rewriting of the
Constitution — are fit to serve on the court; orthodox Catholics
need not apply.
Because Turley operates on the bias that an inherent tension
exists between Catholicism and the Constitution, he suggests that
Roberts would have to recuse himself frequently from cases, thereby
splitting the “Supreme Court on some of the nation’s most important
cases.” It is clear that Turley understands neither the
Constitution nor Catholicism, as evident in his ill-informed
assumption that Roberts would be violating his faith if he upheld
death penalty laws on the Supreme Court. Pope Benedict XVI, in a
memo he wrote last year, explicitly rejected the idea that Catholic
public officials are duty-bound to resist laws that uphold the
death penalty.
“While the Church exhorts civil authorities to seek peace, not
war, and to exercise discretion and mercy in imposing punishment on
criminals, it may still be permissible to take up arms to repel an
aggressor or to have recourse to capital punishment,” he wrote.
“There may be a legitimate diversity of opinion even among
Catholics about waging war and applying the death penalty, but not
however with regard to abortion and euthanasia.”
Turley calls the death penalty an “immoral act according to the
church.” No, it is not. The Catholic Church has never declared the
death penalty an intrinsic evil, and if church officials did they
would be contradicting centuries of teaching.
Scalia, a conscientious Catholic, has never recused himself in
these cases, and Judge Roberts won’t need to either. The only
justices who should recuse themselves from ruling on the
Constitution are the ones who long ago rejected it as a relic of
Judeo-Christian culture.
