John Roberts Is "Non-Plused" - Or Is He? Jonathan Turley Thinks This May Be A Huge Problem (It's Not); And Dick Durbin Gets Caught Again

I am back from vacation, where I made a valiant but doomed effort to keep up with developments.

Okay, it was actually a half-hearted effort, and all the more doomed as a result.

But no matter. With the Roberts nomination inspiring so much insipid and vacuous commentary by the judge's critics, there is no shortage of material for me to jump on. I speak of Jonathan Turley's op-ed piece in the July 25 edition of my home-town paper, the Los Angeles Times. Here's the essence of Turley's piece: In a meeting last week with Senator Dick Durbin, John Roberts was asked "what he would do if the law required a ruling that his church considers immoral." Turley reports Roberts' response:

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.

Turley apparently finds this reported response appalling and deeply disturbing:

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. . . . 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. . . . Roberts may have opened the door to the very questions that the White House sought to avoid with his nomination. If he would have to recuse himself before ruling contrary to his faith, the Senate is entitled to ask specifically how he would handle obvious conflicts on issues such as abortion and the death penalty.

Do the words "tempest in a teapot" come to mind? I have always admired Turley as a straight shooter, but this is disappointing. He can do much better. What Turley's piece really establishes is the out-and-out desperation of the Democrats as they search for any possible foothold for assaulting the Roberts nomination.

First of all, it looks like Turley's being used, or allowing himself to be used. Roberts' supposedly shocking statement clearly came from Durbin's office (perhaps from Durbin himself). Turley relies on "two people who attended the meeting." One wonders who they are, but it is not a great stretch to conclude they are Democrat staffers, if not senators. How confident can we be about the context or accuracy of Roberts' remarks as quoted?

Second, even if this is true, who cares? When Roberts is before the Senate, does anyone really believe he is going to testify that whenever the correct legal analysis requires a result contrary to his faith, he is going to recuse himself? Is there anything in his past writings or statements, or in any of the information available about him, suggesting that he would do so? No, there is not. And yet Turley's alarmist musings get thirteen paragraphs in the L.A. Times.

Turley concludes:

[T]he Senate is left a question that seems to grow each day: Who is John Roberts? The burden may now have shifted to the White House to fully answer this question.

Oh, please.

UPDATE: Hugh Hewitt has more on this, noting that "Dick Durbin is caught telling tales." A New York Times article today reports:

A spokesman for Mr. Durbin and Senator John Cornyn, Republican of Texas, who spoke to Judge Roberts on Monday about the meeting, said Professor Turley's account of a recusal statement was inaccurate.

But in an interview last night, Professor Turley said Mr. Durbin himself had described the conversation to him on Sunday morning, including the statement about recusal.

The Times further reports that Senator Cornyn decided to take the issue on:

Mr. Cornyn called Professor Turley's account of the discussion "troubling, if true." In his own meeting with Judge Roberts on Monday, Mr. Cornyn recounted, "I said, 'I hate to see somebody going down this road because it really smacks of a religious test for public service.' "

He added, "I said, 'I hate bringing this up, but since someone else already has and I know it is going to come up, is there anything about your faith or religious views that would prevent you from deciding issues like the death penalty of abortion or the like?' "

"Absolutely not," Mr. Cornyn recalled Judge Roberts replying.

This gets better. Dick Durbin's running as fast as he can away from Turley's piece:

Mr. Durbin declined to discuss the issue on Monday. A spokesman, Joe Shoemaker, said, "What Judge Roberts did say clearly and repeatedly was that he would follow the rule of law, and beyond that we are going to leave it to Judge Roberts to offer his views."

Well, someone is looking really, really bad here, and it is not John Roberts.