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.
I guess if that is true, all my speculation is wrong, Roberts will have no effect on the Supreme Court as he will be constantly recusing himself from cases. As Jeffry Dubner notes:
Oh, I don't see how that could be a problem. He'd only have to recuse himself from abortion and gay-rights cases ... and maybe the death penalty ... and perhaps pornography cases ... and possibly questions of church-state separation ... and, I suppose, poverty and social justice issues ... and then there's the moral acceptability of war ...
Hopefully this is just something that Roberts didn't really mean and his handlers will find a way to walk it back. But if he was being honest, it's a rather serious issue. Would he recuse himself after deciding that the law goes against Church teachings but let himself vote when his vote would meet Pope Benedict XVI's approval? Is he more afraid of being a bad Catholic than of being a bad justice?