Among the Intellectualoids

J’Recuse

The left can't avoid McCarthyite farce and Catholic baiting in its sniffing around for information on the "personal views" of John Roberts.

By 7.26.05

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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.

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About the Author
George Neumayr, a contributing editor to The American Spectator, is co-author, with Phyllis Schlafly, of the new book, No Higher Power: Obama's War on Religious Freedom.