The Washington Times

As revelations go, the one contained in an op-ed piece by George Washington University law professor Jonathan Turley in the Los Angeles Times July 25 was a blockbuster. Mr. Turley, citing sources who had attended, described an exchange at an informal meeting with Supreme Court nominee John Roberts the week before: “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 … 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.” Mr. Turley continued, “It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer.” Mr. Turley went on, quite correctly, to explain why it would be unacceptable to have a Supreme Court justice who routinely recused himself on matters related to the interpretation of the U.S. Constitution and U.S. law when the latter might be in contradiction with Roman Catholic doctrine.

There appears to have been, however, a serious problem with Mr. Turley’s op-ed, namely, that the factual premise was wrong. Judge Roberts apparently never made any such comments about a need to recuse himself. According to accounts in follow-up stories in the New York Times and The Washington Times, the supposed revelation grew out of a brief green room conversation Mr. Turley had with Mr. Durbin at NBC News studios. Later, Mr. Turley called Mr. Durbin’s press spokesman, Joe Shoemaker, who was present at the studio, to read back to him a portion of the column for verification.

The New York Times reported that two officials who had been present at the confidential meeting with Judge Roberts – as well as Sen. John Cornyn, who had been briefed on the conversation shortly afterward – said that the judge “responded that his personal views would not color his judicial thinking … as he has testified in the past.” Mr. Shoemaker, speaking for his boss, now says, “What Judge Roberts did say clearly and repeatedly was that he would follow the rule of law.” Some have speculated that Mr. Durbin, who has something of a reputation for loose talk, was just venting in the green room. Others have interpreted the episode as an attempt to play the “Catholic card” against Judge Roberts: to suggest that he is unfit for public service because he is an agent of the pope, or something like that.

But I would like to trace responsibility for this non-scandal back slightly differently: to the op-ed page of the L.A. Times.

What were they thinking? We are, after all, talking about the introduction of a major and indeed stunning new supposed fact into the national debate over the issue of the moment, the future of the Supreme Court. If Judge Roberts had indeed said he would recuse himself over abortion, the death penalty and gay marriage, he could never be confirmed – and indeed, I can’t see how President Bush could avoid withdrawing his nomination. Or why he wouldn’t want to withdraw it – in anger at his erstwhile nominee.

Now, given what we know about Judge Roberts – that he is a fellow of great probity and seriousness, etc., and moreover, that he seems to have been spent a career buffing his chances for confirmation to the Supreme Court in the event he ever got the nod he was pursuing – what were Mr. Turley and his editors asking us to believe here? That the question of the relationship of Judge Roberts’ faith to his judging had never occurred to him before that fateful day in Mr. Durbin’s office? That the judge was reduced to silent bafflement by the very question? That he subsequently blurted out an answer that doesn’t even make sense? (As a Supreme Court justice, nothing is stopping you from voting with Rome if you want to; the issue, which is silly anyway, would arise only for lower-court judges, who are bound to follow the Supreme Court’s rulings.)

Does any of this pass the “duh” test? And really, how plausible was it that in the green room one day, fate dumped “the first unscripted answer in the most carefully scripted nomination in history” into the lap of Jonathan Turley – professor, talking head and, by grace of God, journalist? Of course it’s possible – it just needs to be thoroughly checked out.

A little skepticism, of the sort that would have prevented this story from running on the news pages of any major daily on the basis of sourcing so thin, was in order. Op-ed pages rightly offer wide latitude for interpretation. But when it comes to revelation, they ought to hold themselves to the news-page standard, if only to avoid embarrassment of the sort the L.A. Times suffered here.