Did Senator Dick Durbin impose a religious test on SCOTUS nominee John Roberts? In the LA Times, Jonathan Turley claims that:
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).
Durbin's office is denying the story. As a legal matter, I'm not sure how I come out on this. I guess it is a fair question; one can imagine much the same question being posed with respect to the death penalty, which admittedly poses exceedingly tough issues for Catholic judges. Stephen Smith in fact concludes with respect to the latter issue that:
If capital punishment is sought in a case where the Church would regard it as immoral, Catholic judges may not, as I understand it, participate in proceedings intended to determine whether the defendant should be put to death?such participation, after all, would entail formal cooperation [with evil].
Justice Scalia famously rejected this position, as Althouse reminds us, but in doing so he took the position seriously and thereby lent it credence.
Patterico thus errs in commenting on this issue, IMHO, by conflating the standards by which senators make their assessments in the exercise of their Constitutional role to give advice and consent to judicial nominees and those by which judges must recuse themselves in the context of specific cases. Hence, Judge Noonan's eloquent refusal to recuse himself from abortion cases, which Patterico quotes, strikes me as inapposite. ( Beldar has a good analysis of the relevant rules of judicial ethics, but it's worth remembering that Catholic judges are bound by both those rules and the dictates of their faith. The latter bars formal cooperation with evil, which some serious and thoughtful scholars believe that at least Catholic trial judges commit when they impose the death penalty.)
If it is legitmate for senators to consider a nominee's ideology, admittedly a somewhat contested point, it surely is legitimate to consider the potential that their religious views would impact their decisions. I lean towards the vew that a senator properly may consider these questions in making the political decision to vote for or against a SCOTUS nominee.
As a political matter, however, I think it reflects the tin ear most top Democrats have these days when it comes to religion. It is no wonder people of faith increasingly lean towards the GOP, when the Democrats so casually demonstrate their fear of religion and their devotion to abortion.
