From the WSJ Opinion Archives
HOUSES OF WORSHIP
Roberts and Rome
Does Catholic belief interfere with judicial reasoning? What kind of question is that?
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.
Yes, the Catholic Church is a defender of life. It has even issued statements that sound suspiciously like a certain famous declaration of self-evident truth--that we are all created equal, with an unalienable right to life. But the church is also resident in a world where Supreme Court precedent has tragically elevated personal preference over any once-proud declaration of right. What does the church expect of public officials in such an environment?
First and foremost, to be observant of church teaching in one's personal life. The church asks Judge Roberts and his fellow parishioners to pray to end abortion and, in social outreach, to create the conditions that make it less pressing. The church seeks to convert individual souls to the love of God and neighbor; it has no armies to compel either.
Yes, the late Pope John Paul II admonished Catholic public officials to work legislatively to limit abortion--something that even most Democrats proclaim to be doing at least during general elections. But there is not one iota of church teaching demanding that a judge or justice exceed the scope of his office to undo, on solely religious grounds, the public law of abortion or any other matter.
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.
Catholics do not have to recuse themselves, though, from judging the legality of, say, abortion or the death penalty: These are matters of constitutional, not moral, authority. When More was asked why he didn't arrest a man directly for being "bad," he replied (as retold by Sir Robert Bolt) that, though he set man's law "far below" God's, he was most certainly "not God," and he wanted to draw "attention to [that] fact." "The currents and eddies of right and wrong, which [others] find such plain sailing," More said, "I can't navigate . . . . But in the thickets of the law, oh, there I'm a forester. I doubt there's a man alive who could follow me there, thank God."
There is no match for Judge Roberts, either, in the "thickets of the law," and the Senate Democrats should evaluate him on his high merit and avoid picking a fight with American Catholics.
Mr. Kmiec is a professor of constitutional law at Pepperdine University and a former dean of The Catholic University of America School of Law.
