Judge Roberts: Fool, or Foolable? And if Foolable, whose?

Not his finest hour. CNS has this STORY: "Roberts gives some idea of views, avoids addressing specific cases"

In particular, I find this disappointing:

Early during questioning Sept. 13, however, Roberts said he recognizes as "settled precedent" that the Constitution grants a right to privacy, the legal basis of Roe, and that the "settled expectations" of society include a legal right to have an abortion.

On later questions aimed at determining whether he thought Roe or other rulings should be overturned, Roberts declined to answer.

It was the Republican chairman of the committee, Sen. Arlen Specter of Pennsylvania, who asked Roberts how his Catholic faith would affect his work.

Specter asked Roberts whether he would agree with a quote from a 1960 speech by then-Sen. John F. Kennedy to the Greater Houston Ministerial Association, in which he said he was not "the Catholic candidate for president. I am the Democratic Party's candidate for president, who happens also to be Catholic. I do not speak for my church on public matters -- and the church does not speak for me."

Roberts said he agreed with Kennedy's statement and that when it comes to legal rulings he bases his decisions on the facts, the law and the Constitution.

"There's nothing in my personal views based on faith or other sources that would prevent me from applying the precedent of the court faithfully," he said. In response to later questions, he said he rules strictly on the basis of law, not on his faith. "I don't look to the Bible or any other religious sources."

With a hat tip to Amy Welborn, I note that Professor Bainbridge shares my feeling:

As those who followed my extended debate with David Giacalone know, I believe that Kennedy's famous Houston speech was a cop-out and inconsistent with clear Catholic teaching on the civic responsibilities of Catholics. This is not to say, of course, that a Catholic judge inevitably must vote to strike down Roe. As I have emphasized repeatedly, this issue presents complex moral and judicial ethical issues. I'm just disappointed (but not especially surprised, I guess, given the politicization of the confirmation process) that Roberts so blithely opted for the easy way out.

Still, he sees reasons to hope; he notes that Judge Roberts gives himself some "wiggle room":

In related news, James Joyner takes Roberts to task for his statement that Roe is "settled law." here's what Roberts reportedly said:

The heart of the abortion ruling is "settled as a precedent of the court, entitled to respect under principles of stare decisis," the concept that long-established rulings should be given extra weight, Roberts said.

Here's James' take:

John Roberts may have considerably set back his prospects for getting confirmed as the next Chief Justice of the Supreme Court, telling the Senate that Roe vs. Wade is "settled law." ... The mere fact that the Supreme Court rules on something does not make it settled law. Abortion remains the single most controversial issue in American public policy, precisely because many view the Roe precedent as illegitimate. The right to abortion was created in 1973 as an extension of the right to privacy created in 1965. Neither have any but a tangential basis in the Constitution.

I take James' point, but I'm inclined to think that Roberts may have left himself some wiggle room. Obviously Roe is established as "a precedent of the court," and like any other precedent is "entitled to respect under principles of stare decisis," but that doesn't mean it is carved in stone. Stare decisis is subject to lots of exceptions. (If it were not so, the Court in Brown would have been stuck with the separate but equal rule of Plessey.) What Roberts said, in my view, would not prevent him from later writing an opinion that nods to stare decisis and then limits or even overturns Roe on grounds that one or more of established exceptions to the rule of stare decisis is present.

That may be so, but I'm still less than impressed with Judge Roberts' decision to punt. By doing so, he reinforces the ridiculous notion that somehow his faithfulness as a Catholic and his duty as a SCOTUS Justice are mutually exclusive. Nothing could be further from the truth.

Because that's what Roman Catholicism is: the fullness of truth. The Social Doctrine of the Catholic Church proposes principles for the full witness to Truth of citizens and civil servants in public life. None of them compromise the belief of any aherent of another religion or people of good will. Any one with a grasp of reason and a recognition of the Rule of Law and moral order could live the Social Doctrine, however imperfectly, without ever kneeling for baptism. I won't go into detail here why Judge Roberts' Faith would not compromise his integrity as a jurist; Professor Bainbridge has already done an admirable job of that here. I can only wonder: If Roberts' sees his Faith as an impediment to his duty, then what philosophical basis does he hold in determining the law? How open is that philosophy to the Fullness of Truth? I still hope his committment to truth in the law will lead him to limit, and if possible, eliminate Roe v. Wade. Likewise, I hope he'll limit applications of capital punishment to those strict cases in which it's legitimate.

If he's no Fool, then whose Foolable is he? The Right's? Or the Left's? Is he is own man, as he likes to say? Who is that, in particular?

I really don't want to admit that Mark Shea is right about Judge Roberts. The Chief Justice Nominee isn't giving me a lot of choice on the matter at the moment.

On the other hand, Feddie at Southern Appeal notes other prominent Catholics in public life that have a far more favorable view of Judge Roberts--I'm assuming even in light of his testimony.

I certainly hope so. I had liked the indications that Judge Roberts truly respected the Rule of Law, separation of powers and proper role of the Judiciary. I only hope that the foundation of these commitments remains a strong witness to the Faith, and its corresponding CST, and not the flawed ideologies of American politics. The Country has suffered far too much from those pathologies already!