Wall Street Journal: "Roberts and Rome"

Hat tip: Amy Welborn

Douglas Kmiec in today's Wall Street Journal:

Roberts and Rome
Does Catholic belief interfere with judicial reasoning? What kind of question is that?

BY DOUGLAS W. KMIEC
Friday, July 29, 2005 12:01 a.m. EDT

Democrats take umbrage when they are accused of using faith--specifically the Roman Catholic faith--as a reason for blocking President Bush's appellate nominees. Sen. Patrick Leahy and others have denied that they apply a religious litmus test, and little wonder: It would contravene Article VI of the Constitution (the prohibition of religious oaths) and the First Amendment's free-exercise guarantee. But darned if the topic just doesn't keep coming up.

It was reported this week that John Roberts, President Bush's nominee for the Supreme Court, was asked by Sen. Richard Durbin (D., Ill.) "what he would do if the law required a ruling that his church considers immoral." Judge Roberts supposedly answered that he would consider recusal.

It was an informal conversation, and Sen. Durbin has since backpedaled, so what either man said is now a bit murky. Nevertheless, a widely circulated op-ed from the Los Angeles Times--by law professor Jonathan Turley--took issue with Judge Roberts's answer, questioning his "fitness to serve as the 109th Supreme Court justice." Add to this a good deal of published concern over the devout Catholicism of Judge Roberts's wife, and her membership in a pro-life organization, and it is clear that the Democrats are being urged to play the religion card. They shouldn't.

***
In this supposed controversy it is fitting to recall St. Thomas More, known to history for resigning the chancellorship of England when he failed to persuade Henry VIII not to declare himself head of the church. More is revered as a martyr for dying "the King's good servant, but God's first." But as the patron saint of lawyers and statesmen, More is far better remembered for his earnest efforts, at every turn, to avoid inescapable conflict among law, faith and public duty.

Judge Roberts listens carefully to the questions he is asked, and the extreme premise of Sen. Durbin's question -- as reported -- was a judicial action requiring an immoral act. One would hope that all Americans, Catholic or otherwise, would recuse themselves from that.

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(emphasis added)