Yesterday a story swirled around the media that Sen. Richard Durbin on Friday had asked Supreme Court nominee John Roberts what he, as a devout Roman Catholic, would do relative to rulings on things the Roman Catholic Church declared immoral.
The story, as related in the Los Angeles Times by a professor not at the meeting, itself become the story. The New York Times summarized:
An opinion-page article in The Los Angeles Times on Monday by Jonathan Turley, a George Washington University law professor, included an account of Mr. Durbin's question. Professor Turley cited unnamed sources saying that Judge Roberts had told Mr. Durbin he would recuse himself from cases involving abortion, the death penalty or other subjects where Catholic teaching and civil law can clash.
If Roberts had, or if he did, answer that way, it should render him unfit to serve. However, a spokesman for Durbin stated that the story was wrong. (By "wrong," I assume was meant "in error," not "immoral.")
Immediately, the "anti-religious" card was play by the likes of the religious right organization currently headed by Tony Perkins, the Family Research Council, and Fidelis.org, a Roman Catholic religio-political organization, as well as in the Religious Right's media vehicles, and all Democrats were broadly painted as "anti-Catholic."
But some, like Amy Sullivan on Beliefnet, see manufactured outrage, and note that even before any Democrats had sounded an opinion about Roberts at all, right after Roberts was announced by the President, conservative and Religious Right groups were already shouting that Democrats were on the attack against Roberts for his religion (or, seemingly worse yet, "attacking" his wife, who is active in adoption advocacy but also anti-abortion groups).
Sullivan:
[I]t is outrageous for conservatives to argue that Democrats, by virtue of concerns about whether Roberts would uphold Roe v. Wade, are injecting religion into the confirmation process. Accusing those who disagree with them of harboring religious bias is no more becoming or compelling for conservatives than it is when liberals lodge the same charges with race. What’s more, it sullies the process from the very beginning for no good reason.
This could all play-out unfortunately for the Democrats unless they are careful. The issues have been put out there: 1. Would a Catholic doctrine or papal pronouncement affect your ruling, Mr. Roberts? 2. Does your wife's anti-abortion activism affect you? The second question is to be avoided, and will be. The whole topic of the spouse of someone nominated for the Supreme Court needs to stay pretty much irrelevant.
But the first question has some aspects that may warrant exploring. Then-Cardinal Ratzinger, now Pope Benedict the XVI, supported the withholding of Communion (excommunication of a degree) from officials who voted to support abortion. For a Roman Catholic, if orthodox, this can literally put ones soul in jeopardy. So, the question that still might need to be asked is, "Mr. Roberts, you say you will not let your religion influence your judgments as a Justice of the Supreme Court. Are you saying that you're willing to have Communion denied you--perhaps by papal decree--if you should find yourself ultimately deciding that you must uphold the law of the land, which is that abortion is legal in some situations and under certain conditions? Or, Are you confident the Pope would allow you to vote however you wish, without consequences that, you might believe, could jeopardize your soul?"
In the end, it will probably play out more or less as David Brooks has predicted. Roberts isn't in demeanor a Scalia. He's more likable, by all accounts. Democrats were already put on the defensive by the Durbin story. (Some on Daily Kos yesterday suggested that the Durbin story was planted by the Bush administration, so that conservative Republicans and the Religious Right had occasion to brand Democrats "anti-religious.")
If nothing else, now comes a real test of the leadership of Sen. Harry Reid, the political acumen of Sen. Clinton, who's spoken about abortion a lot recently, and the intellect and nerve of Sen. Chuck Schumer, who is on the Judiciary Committee that will question Roberts. They will need to call the "anti-Catholic" bluff so dear to the conservative religio-political coalition influencing and actually governing much of America today, and at the same time ask the appropriate, tough questions, even the one about excommunication suggested above, for the sake of determining Roberts' viability as a nominee for the highest court in the land.