Over time, politicians will manage to stand just about any issue in American politics on its head.
Houston played host to one of the most important speeches of John F. Kennedy‘s 1960 Presidential campaign. Conventional political wisdom at the time was that a Catholic could not be elected President of the United States because of Protestants’ perception that a Catholic would have to obey the Pope’s commands over those of the U.S. Constitution. Mr. Kennedy finally decided to address the issue head-on, and on September 12, 1960, he delivered this statement to the Greater Houston Ministerial Association, in which Theodore White observed that “he knocked religion out of the campaign as an intellectually respectable issue.”

Despite Mr. Kennedy’s victory in the 1960 election, anti-Catholicism in American politics was not eradicated. This fact was reflected again earlier this week when Sen. Richard Durbin (D., Ill.) supposedly asked Supreme Court nominee John R. Roberts, Jr. during an informal interview “what he would do if the law required a ruling that his church considers immoral” and Sen. Durbin reported that Judge Roberts supposedly answered that he would consider recusal. Although Sen. Durbin quickly backpedaled, but, in the meantime, Jonathan Turley wrote this over-the-top L.A. Times op-ed (free regis. required) that challenged his “fitness to serve as the 109th Supreme Court justice” over that response. The L.A. Times followed that op-ed with this confusing editor’s note, which noted the following about Mr. Turley’s story regarding Judge Roberts’ supposed recusal answer to Sen. Durbin’s question:

Tuesday, Durbin’s office said the story was inaccurate.
Aides acknowledged that a question about faith and public policy had been asked, and that Roberts had discussed recusals ? but they said that the recusal answer wasn’t in response to the question about faith.
Turley, however, says it was Durbin who gave him the original information in an on-the-record conversation. Turley says he then confirmed the substance of that conversation with another person who had been at the meeting.

Amidst all that confusion, Douglas W. Kmiec — a Constitutional Law professor at Pepperdine University and the former dean of The Catholic University of America School of Law — straightens everything out in this Opinion Journal op-ed. After noting Sen. Durbin’s confusion and the fact that a religious litmus test for Supreme Court nominees would violate Article VI of the Constitution (the prohibition of religious oaths) and the First Amendment’s free-exercise guarantee, Mr. Kmiec notes as follows:

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.

And, in explaining why a Catholic need not recuse themselves from judging the legality — as opposed to the morality — of abortion or the death penalty, Mr. Kmiec observes as follows:

These are matters of constitutional, not moral, authority. When [Sir Thomas] More was asked why he didn’t arrest a man directly for being “bad,” he replied . . . 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.”

As with Sir Thomas, there are few matches for Judge Roberts in those “thickets of the law,” which is where Democrats would be wise to evaluate Judge Roberts.
Meanwhile, while on the abortion issue, Todd Zywicki over at the Volohk Conspiracy notes that Fifth Circuit Judge and Clear Thinkers favorite Edith Jones‘ recent opinion in the McCorvey case — noted in this earlier post — was really more about stare decis than abortion.
Finally, did you know that Professor Zywicki has the first selection in his Fantasy Football League?
Update: Don’t miss Professor Bainbridge’s thoughtful analysis on Justices’ religious faith and their legal decisions.