Judge John Roberts and the Catholic Question
Christopher Hitchens points to a rather odd promise made by Supreme Court nominee John Roberts to Dick Durbin: That he would recuse himself in cases where Catholic teaching and American law were in contradiction.
Everybody seems to have agreed to tiptoe around the report that Judge John G. Roberts said he would recuse himself in a case where the law required a ruling that the Catholic Church might consider immoral. According to Jonathan Turley, a professor of law at George Washington University, the judge gave this answer in a private meeting with Sen. Richard J. Durbin, D-Ill., who is the Senate minority whip. Durbin told Turley that when asked the question, Roberts looked taken aback and paused for a long time before giving his reply.
Attempts have been made to challenge Turley’s version, and Sen. Durbin (who was himself unfairly misquoted recently as having made a direct comparison between Guantanamo, Hitler, and Stalin when he had only mentioned them in the same breath) probably doesn’t need any more grief. But how probable is it that the story is wrong? A clever conservative friend writes to me that obviously Roberts, who is famed for his unflappability, cannot have committed such a bÃƒªtise. For one thing, he was being faced with a question that he must have known he would be asked. Yes, but that’s exactly what gives the report its ring of truth. If Roberts had simply said that the law and the Constitution would control in all cases (the only possible answer), then there would have been no smoke. If he had said that the Vatican would decide, there would have been a great deal of smoke. But who could have invented the long pause and the evasive answer? I think there is a gleam of fire here. At the very least, Roberts should be asked the same question again, under oath, at his confirmation.
It is already being insinuated, by those who want this thorny question de-thorned, that there is an element of discrimination involved. Why should this question be asked only of Catholics? Well, that’s easy. The Roman Catholic Church claims the right to legislate on morals for all its members and to excommunicate them if they don’t conform. The church is also a foreign state, which has diplomatic relations with Washington. In the very recent past, this church and this state gave asylum to Cardinal Bernard Law, who should have been indicted for his role in the systematic rape and torture of thousands of American children. (Not that child abuse is condemned in the Ten Commandments, any more than slavery or genocide or rape.) More recently still, the newly installed Pope Benedict XVI (who will always be Ratzinger to me) has ruled that Catholic politicians who endorse the right to abortion should be denied the sacraments: no light matter for believers of the sincerity that Judge Roberts and his wife are said to exhibit. And just last month, one of Ratzinger’s closest allies, Cardinal Schonborn of Vienna, wrote an essay in which he announced that evolution was “ideology, not science.”
Thus, quite apart from the scandalous obstruction of American justice in which the church took part in the matter of Cardinal Law, we have increasingly firm papal dogmas on two issues that are bound to come before the court: abortion and the teaching of Darwin in schools. So, please do not accuse me of suggesting a “dual loyalty” among American Catholics. It is their own church, and its conduct and its teachings, that raise this question.
One presumes the Senate will get to the bottom of this. Given all that I’ve read of Roberts’ brilliant legal mind, I am dubious that we can take this at face value.
But Hitchens is right as far as it goes: A judge, let alone a Supreme Court Justice, can have fealty to only one law in the course of his duties: The Constitution of the United States and such legislation, regulations, and treaties which are lawfully executed under it. To act otherwise is to dishonor the Oath of Office.
(As an aside, I’m by no means a Biblical scholar, but a fair reading of the Ten Commandments, especially under the Golden Rule penumbra, would seem to preclude slavery and rape. Even a literal reading enjoins genocide, which is merely a multiple violation of the 6th Commandment against murder. )
Ramesh Ponnuru and Feddie accuse Hitchens of “anti-Catholic bigotry.” But this is nonsense. It’s true that Hitchens is an anti-theist and thus anti-Catholic. It is nonetheless true that the Roman Catholic hierarchy has firm positions on some of the most contentious issues before the Court. Papal bulls should have no more place in a judge’s deliberations than international law or his own policy preferences.