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Monday, July 25, 2005

A response to Jonathan Turley re Judge Roberts and recusal

George Washington University Law Professor Jonathan Turley has an interesting op-ed  in the Los Angeles Times in which he tries to raise a red flag over the prospect that Supreme Court nominee John G. Roberts' religious faith might oblige him to recuse himself in important cases, potentially creating an equally divided Court or otherwise affecting those cases' outcomes:

According to two people who attended [an informal] meeting [last week], 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)....

... [I]n his appellate court confirmation hearings, Roberts was asked specifically whether he could apply Roe vs. Wade and he stated that he could. Now, as he moves toward a job in which he could ultimately be the deciding vote to narrow, preserve or overturn the doctrine, it could be a materially different moral choice for a devout jurist.

Without mocking Prof. Turley's concerns, nor his or Judge Roberts' faith, I think this op-ed considerably overstates the potential problem, both in general and specifically with respect to Judge Roberts.

There are certainly non-Roman Catholic judges who are also deeply religious and deeply moral; the Roman Catholic Church does indeed have high profile public positions on some religious/moral issues that also have legal implications, but the sort of potential conflict that Prof. Turley describes could always arise with any potential nominee to any position on any judicial bench.

And in fact, Judge Roberts' thoughtful answer is not only not wrong, it's precisely the same answer that every ethical lawyer — not just a judge — has to give to that hypothetical question if the premise of the hypothetical is that one's personal belief (religious or otherwise) is likely to seriously cloud one's legal reasoning and judgment. Lawyers are obliged by the relevant ethical rules (e.g., Rule 1.06(b) of the Texas Disciplinary Rules of Professional Conduct, which is typical) to disqualify themselves from representation of a client when that representation "reasonably appears to be or become adversely limited ... by the lawyer's ... own interests." Every lawyer should know that when his personal beliefs genuinely threaten to cloud his judgment, he must disqualify himself or, if he reasonably believes he can function effectively despite those beliefs, he may disclose them and leave the decision to his client. As the comments to the rule state:

The critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. It is for the client to decide whether the client wishes to accommodate the other interest involved.

This is an issue that every lawyer potentially must face in every case — whether he's a Roman Catholic, a Hindu, or an atheist. But normally, it takes milliseconds to run this ethical self-check, and it may not even be done on a conscious level.

Comparable provisions of legal ethics likewise may occasionally require judges to disqualify themselves. Canon 3C(1) of the Code of Conduct for United States Judges requires that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." This includes situations when the person reasonably questioning the judge's impartiality is himself or herself. And although there are potentially competing interests involved — for example, Canon 3A(2) requires that "[a] judge should hear and decide matters assigned, unless disqualified," and as Justice Scalia has pointed out, there are well-recognized policies unique to the Supreme Court that counsel strongly against casual self-recusals — this, again, is potentially an issue that every judge must face in every case, and judges' ethical self-checks are typically no more difficult or risky than lawyers'.

So if there's nothing about this issue that's in any way unique to Judge Roberts or to Roman Catholic nominees generally, then how important is it? I don't mean to trivialize any ethical obligation of judges or lawyers, nor to ridicule any lawyer or judge whose ethical self-test throws up a red flag and ends up in a self-disqualification. But I suggest that one may and should look to real-world experience to answer the "how important?" question. And when one does that, the answer almost certainly is: "Not likely to be important."

Personally, for example, in twenty-five years of practice, I can count on one hand, easily, the number of times I've felt obliged to recuse myself (or make disclosures and ask for a client's informed waiver). And I've very, very rarely seen situations in which other lawyers or judges have self-recused, or in which I thought they ought to have done so. A fair question for Judge Roberts in his confirmation hearings might be this: "Not hypothetically, but in the real world, how often have you actually had to self-recuse, either as a practicing lawyer or as a judge, based on your reasonable concerns that your personal beliefs were likely to affect your legal judgment?" I strongly suspect that Judge Roberts' answer to that question — like my own, and like the answer of essentially all other lawyers and judges — will be "not very often."

Indeed (and sometimes to the point of disgust from others), we lawyers are trained and well-practiced, probably moreso than any other profession, to compartmentalize; to look at problems from multiple angles (always at least two in adversary situations); and to be able to argue all sides of almost any legal issue. From what I've read of Judge Roberts' career — and in particular, the diversity of the private clients he's represented — he's at least as capable as the average lawyer or judge of doing these things effectively. We also know for certain while a lawyer, Judge Roberts has dealt with almost all the kinds and varieties of disputes, public and private, that come before federal appellate courts, because that's been his almost exclusive practice.

So boiled down, my 16-word rebuttal to Prof. Turley's op-ed is this: It's not just him, and it's not really likely to become a real-world problem anyway.

Posted by Beldar at 12:14 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to A response to Jonathan Turley re Judge Roberts and recusal and sent a trackback ping are listed here:

» Jonathan Turley Column: Silly — and Wrong from Patterico's Pontifications

Tracked on Jul 25, 2005 8:11:01 PM

» The Democrats will filibuster, the Democrats will filibuster... from ThoughtsOnline

Tracked on Jul 25, 2005 8:11:21 PM

» A Religious Test? from ProfessorBainbridge.com

Tracked on Jul 26, 2005 1:00:51 PM

» What if John Roberts is a "Serious Catholic"? from f/k/a

Tracked on Aug 1, 2005 3:07:09 PM


(1) waldot made the following comment | Jul 25, 2005 12:39:44 PM | Permalink

Very, very good analysis. Turley's article exhibits one of his worst characterstics - a kind of know-it-all breathlessness that gets very old very fast. Some of the media really like him; I think it's fair to believe that he frequently tailors his analysis to satisfy his media audience.

(2) James B. Shearer made the following comment | Jul 25, 2005 1:20:10 PM | Permalink

Beldar, I think you are missing the point to a certain extent. The problem is not that the Catholic Church considers abortion sinful, the real problem would arise if and when the Catholic Church declares that a judge who does not rule their way on an abortion case (or any other case for that matter) is himself committing a serious sin. For example there have been attempts ( I don't know how "official" they were) to deny Senator Kerry communion because of his abortion votes. I think any similar attempt to deny say Anthony Kennedy communion because of his Supreme Court abortion decisions would in fact put Catholic judges in a very awkward position. Perhaps Roberts is hoping to discourage such attempts to pressure him by indicating he might recuse himself if put in that position.

(3) Beldar made the following comment | Jul 25, 2005 2:10:42 PM | Permalink

Mr. Shearer, that's a very intriguing hypothetical, and certainly something I didn't pick up on from Prof. Turley's one reference to communion. Again, though, I think any nominee — or, as you point out, political candidate, and probably lots of other folks — could be asked the question, "What would you do if your organized religion decided to ban you based on the way you voted?" And I agree that at some point this type of questioning could morph into a disguised religious test (or bias against a particular religion), and some folks are already accusing Durbin of that and have accused him and other Senate Dems of it in connection with the Pryor nomination.

But the fact of the matter is that despite, for example, Justice Scalia's votes in death penalty cases, he's neither seen the need to self-recuse from those cases nor been denied communion. Again, I don't see anything particularly unique here to Judge Roberts, nor necessarily to Roman Catholics. Now, when a President nominates a Muslim to the Supreme Court, I suppose that's when the feathers might indeed start to fly.

At any rate, if Prof. Turley was suggesting that this issue is likely to become, or ought to become, a real impediment to Judge Roberts' confirmation, I just disagree.

(4) James B. Shearer made the following comment | Jul 25, 2005 5:30:34 PM | Permalink

Beldar, the stated hypothetical was about "a ruling that his church considers immoral". I take that to mean the ruling itself is considered immoral and not merely that the ruling says something that the church considers immoral is legal. If Roberts felt he had to recuse himself every time he might have to rule that some immoral act is nonetheless legal then Turley is correct that this is too many cases for Roberts to be a good Supreme Court justice. However if the Catholic Church were to authoritatively declare that a good Catholic judge must rule a certain way on a particular case this would cause me to doubt his ability to impartially judge that case. So I think Roberts would be correct to recuse himself and if this were to happen repeatedly I think he would be obligated to resign (or leave the Church). As you note this is a hypothetical problem at this point and I hope it will remain so.

You note this problem is not unique to Roman Catholics. This is true but I think it is greater for Catholics because of the hierarchical nature of the Catholic Church. For example Florida judge Greer was reportedly asked to leave his congregation because of his rulings in the Schiavo case. While Greer may have found this disturbing, any judge risks offending his community in a controversial case. But Protestants, unlike Catholics, are not religiously bound to obey their pastors who are considered fallible men like any other.

While there should be no religious test for any US office in the sense that no particular religious beliefs should be required I don't think that means that people with religious beliefs that are clearly inconsistent with the duties of the office should be given a pass. I don't think we want a pacifist as Secretary of Defense.

As for Muslims, Islam is diverse but I don't think most Muslims feel bound by the rulings of any particular religious leader (which is why declarations by collections of Islamic scholars that suicide bombing (or anything else) is against Islam have limited utility).

(5) Carl Pham made the following comment | Jul 25, 2005 5:34:58 PM | Permalink

Mmm, I think I agree you somewhat missed the point, Beldar. The question is what effect would his church (not his own moral beliefs) have on Judge Roberts' decisions. What the media talking head is trying to insinuate is that a religious organization (the Catholic Church) is going to have some kind of inappropriate influence on the Supreme Court. Not even a media buffoon would question that Roberts' own personal ethics can and should affect his decisions. But the media puppet is deliberately fuzzing that line, so as to make the dark implication that the Pope is going to be influencing SCOTUS via his covert agent John Roberts...

What Roberts could have answered, IMHO, is this:

"I'm sorry, I don't understand the question. Are you asking me what would happen if the law required a ruling which I personally found to be immoral? Well, I think that's pretty far-fetched. I think we have a good and moral set of laws here in the United States blah blah warm and fuzzy blather blah...but in the very unlikely event this ever happened, I suppose like any good judge I'd recuse myself.

Or, are you asking whether my personal ethics have been, and my decisions as a judge would be dictated by the policy positions of the Roman Catholic Church? In that case...[laughs]...well, obviously not!"

But I suspect Judge Roberts is not without considerable political savoir-faire, and he gave Dick the answer Dick wanted to hear, that's all. An answer filled with lots of humility. I mean, if he gave my answer he'd leave Durbin gasping like the beached whale on the rocky shores of logic he is, but the newspapers would have a field day and Durbin would froth with Chicken-Little hysteria more than he usually does.

(6) Bostonian made the following comment | Jul 25, 2005 7:40:35 PM | Permalink

I think the unstated assumption is that people with religious beliefs cannot be trusted to do rational thinking.

In contrast, we are to believe that those people without religion are somehow more rational.

This is hooey, of course. The Left believes all manner of dogma, and does not recognize it to be dogma.

(7) RiverRat made the following comment | Jul 25, 2005 9:13:06 PM | Permalink

Article VI of the Constitution.

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.

(8) nk made the following comment | Jul 25, 2005 9:45:13 PM | Permalink

Good job. The attack machine is picking up speed and I am glad that it finds speed bumps like this in the road.

Except that "it" probably did not happen according www.patterico.com.

(9) Patterico made the following comment | Jul 25, 2005 10:43:22 PM | Permalink

A couple of other commenters beat me to the punch.

1) It appears that the scenario described by Turley didn't happen.

2) RiverRat: I also make the Article VI argument in the same post (or, to be precise, I quote a federal judge who does).

(10) Neo made the following comment | Jul 26, 2005 2:04:38 PM | Permalink

I assume then that Professor Turley would also have him recuse himself in a case where the government had written a law to execute on sight any and all law professors that opine on TV or newpapers because of the Church's position on capital punishment. Such a unconstitutional law would require any justice to rule, not bow out.
Where is it written that Justices only write about cases over which they have no opinion in the first place ?

(11) Carl Pham made the following comment | Jul 26, 2005 3:46:06 PM | Permalink

Alas, I have described Professor Turley completely wrongly. Luckily no one paid attention...

But I agree with Hugh Hewitt more than Patterico -- I find it far more plausible that Dick Durbin lied about the event than that it didn't happen at all.

(12) Geek, Esq. made the following comment | Jul 27, 2005 9:36:52 AM | Permalink

Beldar, the issue isn't the man's personal faith.

The issue is whether he'd follow marching orders from the authoritarian leadership of the Vatican, which has demonstrated quite clearly its willingness to interfere in the governance of democratic states.

The question of "What if the constitution says one thing, and Pope Ratzo says another?" is indeed a valid question.

(13) James B. Shearer made the following comment | Jul 27, 2005 4:44:44 PM | Permalink

There are a number of posts about this on Mirror of Justice starting here and including this about denying communion to judges. Note the discussion started before the Turley column appeared.

(14) Jonathan Sadow made the following comment | Jul 27, 2005 4:53:40 PM | Permalink

Geek, Esq. needs to glance upward a couple of comments to the citation of Article VI of the Constitution....

Of course, this is all a tempest in a teapot. Any decision that a putative Justice Roberts would make in regards to abortion would be a purely legal one, presumably regarding the federal government's ability to regulate abortion, rather than a political decision on whether abortion is a good thing or not. In this way, the issue is in fact quite similar to the Hedgepeth case which Beldar has blogged about recently; Judge Roberts's decision concerned the legality of the District's policy toward juvenile suspects rather than its prudence.

The Catholic Church's authority extends only to matters of faith and morals. It is held by the Church as truth that abortion is intrinsically evil; hence, anyone enabling the act to take place is guilty of a grave sin. This would include establishing laws that make abortion a legal activity. That's not what Roberts would be doing, however, even if in a hypothetical case he voted in such a way that abortion would not be restricted. The moral culpability lies with those who establish the laws, not those who adjudicate them; the Church has no authority concerning the legal structure of a nation, nor would it presume to insert itself into an debate that it knows it does not belong.

The short answer, then, is that the question is moot. There is no chance the Catholic Church will tell Roberts how to rule on a case, because the Church knows that it doesn't have the authority to do so. On the other hand, it does have the authority to speak of legislation which advances or restricts the God-given rights of human beings. People with the authority to legislate, such as Senators Kerry and Leahy, are thus subject to the Church's judgement, which would include the necessary disciplinary action (such as the loss of Communion priveleges) to bring these people back into full communion with the Church.

(15) James B. Shearer made the following comment | Jul 27, 2005 5:02:42 PM | Permalink

Trying to fix the third link above .

(16) Geek, Esq. made the following comment | Jul 28, 2005 1:26:24 AM | Permalink

What matters is not Roberts' faith--he can believe everything that a Catholic 'should' and it is completely irrelevant.

What matters is whether he would follow orders from a foreign head of state that is highly inclined to give such orders.

This has become an issue--over forty years after JFK tried to kill it as an issue--because the Roman Catholic church has been commanding its followers to vote as Rome sees fit. The question of dual loyalty only arises because Pope Ratzo has explicitly made it an issue.

(17) Carol Herman made the following comment | Jul 31, 2005 4:53:19 PM | Permalink

You know, I "miss" the other Catholic. Who? Kerry's wife. They were the Catholic couple the dems thought would live in the White House. Nope. But I sure miss that ditz.

While Leahy leaks. Big deal.

It's rather sad to see our MSM coming to this; while one of their own sits in jail, we watch the clowns in the senate are manufacturing poisons, hoping the American public will drink it.

I guess Islam, these days, aren't the only death cultists in business?

Meanwhile, for GWB has played his card. Upped the ante on the table. And, when the game is done we'll see if being cool under fire; and reaping rewards, dosn't come to the GOP AGAIN!

Don't they teach you these rules in law school? The judge is the one in control. Your antics won't help ya in a court of law. And, it doesn't help ya in a democracy where the people are voting your side of the aisle DOWN.

Roberts will win.

And, if not?

You think GWB has run out of cards? Let's say, he has to send in a replacement to go to bat. What if he sends in Bork? What if he makes the democraps really go wild?

In a democracy the results are in getting candidates elected. Not in losing seats; like Daschle just did, ya know?

(18) SDN made the following comment | Aug 3, 2005 5:27:02 AM | Permalink

Geek, this has become an issue because liberals such as yourself have failed utterly to persuade a majority of the American people to adopt your positions legislatively, and are desperately trying to control and use the courts and the unelected bureaucracy to impose them regardless.

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