Last week, during an "informal discussion" with Circuit Court Judge and Supreme Court nominee John Roberts, Sen. Richard Durbin (D-Ill.) asked Roberts "what he would do if the law required a ruling that his church considers immoral." As the LA Times' Jonathan Turley comments ):
Renowned for his unflappable style in oral argument, Roberts appeared nonplussed and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.
Although this answer may seem rather surprising to most people, at least some Catholic legal bloggers had also been considering the option last week, mainly here and here.
The possibility of Roberts' recusing himself raises a number of questions. The first, discussed by Turley, is whether a nominee holding such a position is fit to hold the office of Supreme Court justice. Recusal would leave an 8-justice Court which, of course, raises the possibility of a split decision. While this is true, recusal is always a possibility for a judge, especially a judge who has any significant financial investments.
Turley also posits that this was "the wrong answer" because "a judge's personal religious views should have no role in the interpretation of the laws." I question whether such a standard is achieveable and, perhaps more interestingly, something we would actually want our judges to aspire to. (I'll be addressing that particular question/issue in a later post.)
Based on my reading of Robert's statement, however, I think he would agree with Turley's premise. In fact, I think that's his reason for giving the answer he did.
The United States Code addresses the recusal of judges, stating:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
* * *
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
Ever since Geraldine Ferraro ran for Vice President, the question of excommunicating Catholics, or refusing them communion, for their religious views has been a matter of public debate. Indeed, based on comments by then-Cardinal Ratzinger, it would seem that the current Pope is in favor of at least denying communion to those who publicly oppose Catholic doctrine. While the usual targets are holders of political office, there's precedent for excommunicating judges as well.
So -- let's say you're a devout Catholic judge, one who takes his relationship with deity seriously and for whom the sacrament of holy communion is a very important part of that relationship. And say you know that, depending on how you interpret the law of the land, you might be excommunicated or, at the very least, denied communion. Is that an "interest" addressed by the US Code? Does it matter that it's not the outcome of the case, but the substance of the opinion that the judge is supporting, that's the relevant bit?
It seems to me that it most certainly is. It also seems to me, however, that the "proper" rule for the jurist would be to recuse him or herself in any case at which the law might require "a ruling that his church considers immoral," not just a case in which the jurist has already determined that it would. Otherwise there might be the perception of impropriety and partiality -- the very ills that recusal is designed to protect against. It's my hope that Roberts will reflect upon his position and change it accordingly.
So is the foreknowledge that such recusal might happen, of itself, a sufficient justification to oppose a judicial nominee? As I said earlier, there is always the risk that a judge will need to recuse him or herself in any particular case. The issues regarding which the Catholic church has set down ex cathedra teachings and which are likely to come up in Court review are quite limited, although they tend to be rather eye catching.
I think the bigger question is whether we, as a nation, are willing to refuse to approve a nominee to the Supreme Court because he is a devout member of a religion. Because he recognizes the awkward position his religion's hierarchy puts him in enough to state that he will willingly take himself out of the judicial process in certain cases.
While this might not quite rise to the level of subjecting a nominee to a "religious Test" as prohibited in Article VI, Clause 3, of the Constitution, it strikes me as setting a very dangerous precedent.
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