Roberts said he would have to recuse himself

[realFedUp]

Read Jonathan Turley's column today in the
LA Times...

http://www.latimes.com/news/opinion/commentary/la-oe-turley25jul25,0,3148446.story?coll=la-news-comment-opinions

The faith of John Roberts

By Jonathan Turley
Jonathan Turley is a law professor at George Washington University.

July 25, 2005

Judge John G. Roberts Jr. has been called the stealth nominee for the Supreme Court — a nominee specifically selected because he has few public positions on controversial issues such as abortion. However, in a meeting last week, Roberts briefly lifted the carefully maintained curtain over his personal views. In so doing, he raised a question that could not only undermine the White House strategy for confirmation but could raise a question of his fitness to serve as the 109th Supreme Court justice.

The exchange occurred during one of Roberts' informal discussions with senators last week. According to two people who attended the meeting, 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).

Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.

It was the first unscripted answer in the most carefully scripted nomination in history. 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. A judge's personal religious views should have no role in the interpretation of the laws. (To his credit, Roberts did not say that his faith would control in such a case).
continued

[SteppingRazor]

1. On the plus side...

At least he has the cajones to revuse himself. If all religio-crazy Supreme Court judges (I'm looking at you, Scalia), it'd allow the sane people to rule the day.

[realFedUp]

2. We can't have a nominee and Justice who has to recuse himself

on all sorts of issues that the Catholic church
might disagree on...it's a small court, dependent
on everyone following the law, not their Bibles
in deciding on laws affecting all of America,
not just the Catholics.

[atreides1]

5. Just Because he said he would, doesn't mean he would.

No he said he would recuse himself, but what guarantee is in place to ensure that he does? Remember this was a "what if" question.

I'm sure that neither Scalia or Thomas said that they would be guided
by their personal religious views, but years later we know better, dont' we?

[realFedUp]

8. exactly....we don't know.

just another partisan worker for Bush Inc.

[Talismom]

24. Right! I'll believe it when I see it! n/t

[LittleClarkie]

41. Hmm, I don't dislike this man

I think he's got more morals than some. I think at least he's a thoughtful man. He doesn't give me the creeps like some that Bush could have nominated. Even so, I gave to the DNC Roberts fund in case of a fight.

[beam me up scottie]

3. Is that enough

to hang him with ?

[librechik]

4. thank god! at least he's honest!

unlike most of Shrub's sneaky crew.

That actually renews my faith in "real" conservatives. I often wonder how many of them have adopted the lying and the ends-justify-means- Nazi crap that Shrub and the neocons have tried to put over on us.

[atre]

13. This isn't a good thing

nm

[realFedUp]

18. I agree...this isn't a good thing

Even, if he's just saying this for political
expediency, no one on the Supreme Court should
make a habit of recusing him or herself because
of their religious beliefs.

And in the past Roberts hasn't excused himself
from some of the most important issues facing
this country, as a lawyer or judge.

Believe that this guy will say anything to get
on this court.

[librechik]

19. oh, I know--IMO this frankly disqualifies him in an unambiguous way

which, in a way seems like a good thing. What's the difference, since he could be a ham sandwich and get approved with this congress.

[realFedUp]

21. true, pork sandwiches are being installed daily

but Dems are saving their cajones to oppose
hogies I think...

[librechik]

23. LOL

savin em or still looking for them

[napi21]

6. Well, that would be an interesting developement, huh?

A tie ruling? If one of the nine justices recuses himself, the court could reasonably result in tie decisions!

Has that ever happened before? Hmmm

[atre]

11. Yes, it has

The Supreme Court has not always had 9 Justices, and even during the period in which we have, there have been a few rulings in which a tie was struct because of illness or absence of a Justice.

When there is a tie, the Chief Justice casts the deciding vote.

[napi21]

16. You mean the CJ gets @ votes?

That's BS too! As much as I don't want to see a tie on anything, the case should just remain undecided, the same as in a jury trial when they can't reach an agreement and it's a hung jury!

Rehear the damn case!!!

[bornskeptic]

20. Not according to this case

Sacramento Bee - 12/17/02, By David Whitney, staff writer. Washington -
The U.S. Supreme Court announced Monday that it was deadlocked 4-4 on a wetlands case involving developer Angelo Tsakopoulos, and thus affirmed a lower-court ruling fining him $500,000 for plowing two acres of wetlands in a south Sacramento County vineyard.

The decision came less than a week after the high court heard oral arguments in the case, closely watched by environmental and development interests because it challenged the government's authority to regulate farm plowing under the Clean Water Act.

The even split on the nine-member Supreme Court came after Justice Anthony Kennedy, a law professor at Sacramento's McGeorge School of Law before joining the high court, recused himself because he is acquainted with Tsakopoulos.

After hearing arguments last week, the eight justices left to decide the case found that they were evenly divided and didn't have a majority to write an opinion. That split was announced Monday, and the 9th U.S. Circuit Court of Appeals decision against Tsakopoulos automatically was affirmed.


<snip>

http://www.aswm.org/wbn/archive/02/021231b.htm

It looks like a tie is just a tie.

[atre]

22. You're right. I'm wrong.

From Slate: http://slate.msn.com/id/2109077/

"Although rare, 4-4 ties are hardly unheard-of—justices do recuse themselves from time to time. A split decision effectively upholds the ruling of the lower court (presumably a state supreme court). In the event of such a tie, the court typically issues what's known as a per curiam decision. The opinion in such a decision is issued under the court's name, as opposed to consisting of a majority and a minority opinion. Justices, however, may attach dissenting opinions to the per curiam decision if they like—as happened in Bush v. Gore.

"When a 4-4 deadlock does occur, the case is not deemed to have set any sort of precedent. Tradition holds that the court's per curiam opinion in such ties is usually very, very terse, often consisting of no more than a single sentence: "The judgment is affirmed by an equally divided court." But it's a safe bet that the opinion in Kerry v. Bush or Bush v. Kerry would be a lot longer than usual."

[grumpy old fart]

32. Scalia never recused himself, did he?

"...recused himself because he is acquainted with Tsakopoulos"

Funny,Scalia was a lot more than "acquainted" with his hunting buddy Cheney, but didn't feel he needed to recuse himself on the recent "Energygate" case.....That's your Rethug values for ya....

[mtnester]

7. Dammit! You are not there to "recuse" yourself...

you are there to adjudicate disputes over the constituion...NOTHING ELSE ASSHOLE.

Your religion HAS to mean DIDDLY when it comes to that, unless you ultimately want to LOSE YOUR RIGHT TO FREEDOM OF RELIGION TOO.

OK, I can see that my PMS has kicked in, so stand back people.
:mad:

[realFedUp]

9. I agree with your pms.

:-)

[atre]

10. I'm not sure you guys understand what this means

This means that he is a dyed-in-the-wool Austinian jurisprude - a strict legal positivist. And not one of the enlightened positivists like H.L.A. Hart, but rather a positivist of the early 19th Century variety. Exactly like Scalia.

This is not good.

[atre]

12. By the way, when he says he'll recuse himself...

... he is not broadly talking about any situation in which an issue that touches on his morality comes before the Court. He is talking about situations in which the law is unmistakeable and it would go against his personal morality to uphold it.

Dig up Scalia's article in First Things and search for the word "recuse" and you'll get an idea what this guy is talking about.

[Bucky]

14. Oath shmoath. Do you want the rule of law or do you want neocons in charge

It sounds like Bush fucked up and appointed an honest man. Bad move.

[stilpist]

15. I should think Former Governor Bush would pull the nomination.

Clearly Roberts is the wrong man for the job. First time he has to lie his way out of trouble, he tries to tell the truth!

[aint_no_life_nowhere]

17. What if Rove is convicted and appeals to the Supreme Court?

Would Justice Roberts recuse himself from hearing a federal issue argued in the case of a man (Rove) with whom he probably met extensively behind closed doors and who selected him on behalf of the President? Roberts probably owes his appointment in its entirety to the decision of Karl Rove. The Plame matter has already involved Supreme Court involvement: Cooper and Miller appealed their subpoenas all the way to the Supreme Court, the latter having refused to grant certiorari.

[Twist_U_Up]

25. this is exactly why they are putting him in there

I just read something about this . I can`t find the link

[PatsFan2004]

26. I would hope that a justice would recuse him/herself when

the public might lack confidence in a SC decision because of issues like this (friend of plaintiff and so on). I do want to know that justices decided a case based upon the law and not on personal pet peeves.

[realFedUp]

31. I like knowing a justice decides on a case based on law also

unfortunately this happy wish isn't
happening with the Scalia/Thomas cabal.

[GracieM]

27. Is there such a case?

In his mind I mean. I'm sure Roe v Wade means shit to him. I'm stumped trying to think of a case that he couldn't come up with a legal argument that would support the decision his religion would call for.

ANybody have any ideas? Abortion doesn't work, I doubt the four dissenters in Wade were all catholics...

I don't like his answer, but there is a better chance of aliens taking over than Roberts finding a case where is religion forces him to recuse himself...

[Straight Shooter]

28. I don't know why some people are calling him "honest"

He advised bush's brother regarding stopping the counting of votes in Florida. He raised $80,000 for bush's 2004 campaign.

This guy is the ultimate insider, and he's chosen by bush. There's no way on God's green earth this man is honest. Anyway, he said he "probably" would have to recuse himself. "Probably" means nothing. It's as vague a term as "maybe."

Roberts is a dissembler. Perhaps bush can explain the meaning of that word to America.

[janetle]

30. He's a liar just like the rest of them--doesn't "recall" Fed. Soc.??

I found this article in my paper today just plain strange. How can Roberts not recall whether he was involved in the Federalist Society or not?? I thought he had a brilliant mind! He was listed in the leadership of the group but he can't remember?!

http://seattlepi.nwsource.com/national/apwashington_story.asp?category=1154&slug=Scotus%20Bush

[Mr_Spock]

29. Well, that's it, next nominee!

He's not fit for the job - doesn't have what it takes.

[Jecks]

33. We must be careful

...That question and response probably cannot be used against Roberts for a very simple reason.

Article VI, Clause 3 of the U.S. Constitution states.....

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Asking him how his religion would define his judgment is basically applying a religious test to his confirmation.

[Sparkly]

34. I'm not so sure about that.

Seems to me if his religious views render him unable to rule, it's at least worth asking more questions about his fitness for the court. That's not a religious test, it's a judicial one.

[Jecks]

36. That is the whole point...

....you are not allowed to take his religious veiws int consideration in the first place. You must completely disregard them as specified by the constitution.

[Sparkly]

37. "No religious Test shall ever be required as a Qualification"

Nobody's saying he needs to hold one religion or another or no religion as a qualification.

But the test is a judicial one. If he's rendered incapable of ruling, it matters -- no matter what the cause. I don't think there's an exception to that for religion.

[realFedUp]

35. Welcome Jecks

The Bushies have erased the separation of
church and state, have described their nominees
as having "good hearts" code to their rightwingnutchristian base,
have siphoned taxpayer "faith-based" monies in the form of
walking around money to buy some pulpits and votes in
this country and want the Ten Commandments in public
places of law.

I don't give a damn what can or cannot be asked
this nominee because I'm tired of someone's faith
coloring where they judge American law and the Constitution.
If John Roberts said he would have to recuse himself
if a ruling were to be made on an issue the Catholic
church has decided on, then it matters if he's Catholic,
Muslim, Buddhist, Opus Dei, Dominionist, part of The Family,
the Fellowship or worships Satan. No faith should interfere
with the rule of law.

[Jecks]

38. I know the frustration you feel

....but are you saying you are willing to disregard the Constitution in order to achieve a political objective?

I would like nothing more than to see a more progressive court but I am unwilling to cross a line into a flagrant disregard for the founding principles of our nation. That would make me no better than them.

[realFedUp]

39. Yeah.

That's what I'm saying. Until the Bushies
are out of office, I'm using their rules...
which are no rules.

[Sparkly]

40. Separation of church and state.

The founding principles do not include: "You can hold a position you're incapable of holding, if the reason for your incapability is religion."

[Jecks]

42. SCJ's...

....recuse themselves all the time. That does not mean he is incapable of doing his job. And to be honest I would rather he recuse himself than use his religion as a basis for his judgment.

The real question is even though he said he will recuse himself, will he? He strikes me as a "used car salesman" and I would not trust him to do as he said.

If I was a Senator who was questioning him, I would try and find out about his honesty. That is what I would go after.

[Sparkly]

43. They recuse themselves if they have a conflict of interest

or otherwise can't be impartial. But if the Catholic Church supercedes his own judgment on issues, that covers alot of ground on which he wouldn't be able to rule, seems to me.

I agree with you that it's a bigger danger that he'd just go ahead and NOT recuse himself.

I'm not sure it'll be easy to go after honesty. I remember the Clarence Thomas hearings -- including his assertion that he'd never even THOUGHT about Roe v. Wade!

[CAcyclist]

54. No, This Is The Opposite

A "religious test" would be for him to prove he *is* religious.

[lyonn]

55. Oath to support the Constitution

EDIT: not your religion.

How can you support the Constitution And the bible or your church's rules? There is a separation of church and state. Kennedy got hammered when he ran for Pres. because he was Catholic and he insisted that he would uphold the Constitution or words to that effect. No one then wanted a Pres. that would answer to the Pope and not their country. Roberts' remark as far as I can tell is enough to keep him off the bench. Recuse yourself because of personal beliefs??

[tjdee]

44. There's no recusing in Supreme Court! You can't have ties, LOL.

Can you?

Seems to me we can't have a Justice who backs out every now and then. What happens if there is a tie, because wittle John can't do his job?

[Jecks]

45. Of course you can....

....recuse yourself. You cannot nominate a robot. In fact they do not always recuse themselves when they should....ie Scalia on the Cheney Energy Task Force issue.

[Sparkly]

46. You got a point there, Jecks. nt

[tjdee]

48. I'd be interested in finding out what kind of cases he's talking about.

I was actually thinking of Tom Hanks going "There's no crying in baseball!" in a League of Their Own--and obviously, there was crying.

I would concede the possibility (and actuality) that once or twice the judges recuse themselves.

However, Roberts is saying there is an entire class of cases he'd recuse himself from. I'd be interested in a)what is the criteria wherein he'd do so, and b)how many cases of that kind has the SC dealt with lately (i.e., how much work is he not going to be doing?).

One would think if we're paying someone to do a job, they'd be able to do ALL of the job.

And again, what happens in the case of a tie? (I really don't know)

[Jecks]

49. Here is a link...

...to the story in question where Democratic Senators asked CJ Rehnquist to clarify the ethics rules of the SC. Scalia had refused to recuse himself from the case even though he had traveled with Cheney socially.

http://www.cnn.com/2004/LAW/01/22/scalia.cheney.trip/

[tjdee]

50. Thank you!

:thumbsup:

[milkyway]

47. He's disqualified. He said that he would only uphold the laws of the U.S.

if they didn't conflict with what he considers paramount: his religious beliefs.

A justice system is based on Reason. An individual's beliefs about the origins of the universe and what happens to people when they die has absolutely nothing to do with a court of law. A person who thinks the Constitution is subservient to his religious beliefs does not belong on the Supreme Court. It was named the Supreme Court for a reason.

http://dictionary.reference.com/search?q=supreme

Well, at least Roberts is honest.

[Jecks]

51. I don't see where he said that....

The article specifically says...

(To his credit, Roberts did not say that his faith would control in such a case).


All I see is that he says he would recuse himself in a case where his religion would interfere with the law. That is distinctly different from what you are saying.

I do have serious doubts, however, that he would actually recuse himself. It is more likely that he would take the opportunity to overturn settled law.

[milkyway]

52. It's not a direct quote, but it's certainly his thinking. If there's a

conflict between the two, he says his religious beliefs will lead him to recuse himself rather than do his job. He won't issue a ruling that would be against his religious beliefs because those beliefs are paramount to him.

[Nothing Without Hope]

53. Also see this excellent fact sheet on Roberts from MoveOn:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x1956074
thread title: EXCELLENT fact sheet on Roberts from MoveOn - FIGHT THIS NOMINATION!

[Divernan]

56. At the Supreme Court level, the law never "requires" a ruling.

Roberts should have pointed out to the questioner that at the level of the Supreme Court, the law never "require(s) a ruling", i.e, rely solely on precedent of previous decisions. Each justice on the Court has the option of filing a dissent in opposition to existing law, and suggesting that a change in that law is in order. If enough justices agree, the existing law is overruled/reversed. This would be what could happen if a majority of justices on the court decided to overturn Roe v. Wade.

Of the many cases which are appealed to the Supreme Court each year, only some are selected for consideration. One basis for consideration is if the Court is ready to overturn the existing law/precedent.

It was a stupid question for the Senator to ask (probably dreamed up by a legislative aide without a law degree) and it amazes me that such a supposedly slick lawyer like Roberts would not have given the explanation in Paragraph One above.
I think he must have been under such strict orders not to give out any HINT of an opinion on Roe v. Wade that he just froze and wasn't thinking clearly.