Joseph Sobran’s
Washington Watch

Roberts’s Religion

(Reprinted from the issue of August 4, 2005)

The Democrats are looking hard for anything that will disqualify Judge John Roberts for the Supreme Court, or at least send him to the Court already damaged. They want to scrutinize not only his opinions as a federal judge, but all records of his performance as an advocate in the Reagan and first Bush administrations. Curiously, the second Bush is (so far) willing to disclose his records in the former but not the latter.

The Republicans’ chief anxiety is that Roberts may talk too much. The Democrats will want to press him at his confirmation hearings, hoping he will be drawn into saying something they can profess to find alarming, a la Robert Bork. But the Republicans point to the precedent of Ruth Bader Ginsburg, who at her own confirmation hearings flatly ruled out answering any questions that might even “hint” at how she might rule on any controversial question; since the Democrats made no objection to her stonewalling, they can have no fair objection if Roberts does likewise.

In the documents of Reagan years, according to a New York Times account, Roberts comes across as a clever lawyer with a bent for mild sarcasm, and as a bit of a stickler for strict interpretation of the Constitution. So far, so good, but only a few clues to his thinking have emerged. Still, there are grounds for hope.

In one of his rulings as a federal judge, Roberts argued against an environmentalist measure to protect the arroyo toad, which he dryly described as a “hapless toad, which, for reasons of its own, lives its entire life in California.” His point was that since the toad didn’t cross state lines, it was beyond the reach of the interstate commerce clause and, therefore, federal protection. A small matter, but at least it shows a willingness to draw the line on federal authority. Whether this indicates a consistent principle we must wait to learn.

Still, it’s encouraging that Roberts is keenly aware that there is more than one side of the question. As a federal judge, he has not ruled uncritically and automatically in favor of federal power. Unlike David Souter, he would not be a knee-jerk liberal.

This is what we might expect from a member of the Federalist Society. Unfortunately, the Times also reports that he has on several occasions denied having been a member of the conservative group. This is a matter one would like to see cleared up.

The Times, busily seeking ominous information, further reports that Mrs. Roberts is an active pro-lifer, a prominent member of the anti-abortion Feminists for Life. But such diligent inquiries, encouraging liberals to say “Uh-oh!” may have led the Democrats into overplaying their hand.

In a purportedly confidential conversation, the Illinois Democrat Sen. Dick Durbin, himself a Catholic, asked Roberts whether his Catholicism would allow him to rule impartially on certain matters that might come before the Court. Roberts reportedly replied that he would recuse himself from cases involving abortion, the death penalty, and other issues where Catholic teaching might clash with the law.

Alarming, if true. (Or comforting, if you’re a liberal.) But it quickly transpired that this was only Durbin’s account of the “confidential” conversation, which he leaked to the press. It may well be a distorted version of what Roberts actually said. One certainly hopes so.

If he really said what Durbin claims he said, then Catholics, not liberals, should oppose his confirmation. We don’t want a Catholic justice who would recuse himself on abortion, because Roe v. Wade is bad law on strictly secular grounds, as even some liberal legal scholars acknowledge. The idea that a Catholic is disqualified from considering it on its legal merits is nonsense, and vicious nonsense at that.
 
The Democrats’ “Catholic Problem”

Republicans quickly seized the opportunity to accuse the Democrats of hostility to religion, and in particular of trying to apply a “religious test” to believing Catholics. Religion has become, for the Democrats, the kind of embarrassment that race used to be for the Republicans. Just as it has been easy for the Democrats to convince blacks that Republicans are their enemies, many white Christians, Catholic and Protestant alike, now see the Democrats as their enemies, and the Republicans are only too happy to encourage this perception.

After all, the Protestant George W. Bush got more Catholic votes last year than the Catholic (and former altar boy) John Kerry.

Both parties now realize that the Democrats face a serious “Catholic problem.” For many years Catholic voters were the core of the party, and the Democrats took them for granted even as they were alienating them — and even after many of them became the “Reagan Democrats” in the 1980s. It won’t do the Democrats a bit of good if the Republicans can portray the Roberts confirmation fight as a case of the Democrats ganging up on a sincere Catholic.

Catholic groups are already joining the fray with television ads claiming that “Catholics need not apply” and accusing the Democrats of “religious bigotry.” If the Democrats find all this grossly unfair — aren’t many of their own leaders Catholics? — they may want to reconsider what that exemplary Catholic Ted Kennedy said about Robert Bork in 1987, before his confirmation hearings had even begun.

Kennedy later assured Bork that his smears were “nothing personal”! Well, to give this devil his due, that is literally accurate. Kennedy merely said that all sorts of horrors would return in “Robert Bork’s America,” leaving us free to believe that Robert Bork, the man, was quite distinct from the hell of Robert Bork’s America.

How was poor Kennedy to know that some people would confuse the two things?
 
The Fallacy of the “Living” Constitution

In a recent radio interview, Bork said he would counsel Roberts to disclose as little as possible to the Senate. He recalled that this was advice he couldn’t have taken himself, since he had already written extensively on the Supreme Court’s dubious jurisprudence.

Even so, Bork’s nomination provoked a fruitful debate about the Court and the Constitution, despite his rejection by the Senate (then controlled by the Democrats). Certain important issues were publicly aired for the first time, and the fallacy of the “living” Constitution was exposed. I was deeply disappointed when Bork lost, but I am still glad that his side of the argument was heard.

It’s sad, in a way, that Roberts is being urged to clam up. In a better world, with fewer demagogues whetting their knives, it would be good for everyone to hear the nominee’s frank views on the Constitution. These should not be of interest only to his cynical enemies.

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Joseph Sobran