That's a Whole Lotta Recusal

We know that the official White House policy on its Supreme Court nominee is to have him answer as few questions on specific issues as possible, and to reject any disclosure of documents from a large portion of his working life, his time in the solicitor general's office under the first President Bush. We heard all over the Sunday talk shows that such disclosure would violate "attorney-client privilege," despite the fact that Judge Rehnquist gave up exactly such papers when nominated for Chief Justice in 1986.

And that will be a battle played out more over the rights of the legislative branch versus the executive (and the judiciary, in a way). But the drips and drabs of information that we are learning about Judge John G. Roberts are pretty unusual. For one, he seems to have forgotten several years of his professional life, including his membership in the Federalist Society, pretty much a must-join for conservative lawyers.

WASHINGTON (AP) -- Supreme Court nominee John Roberts declined Monday to say why he was listed in a leadership directory of the Federalist Society and the White House said he has no recollection of belonging to the conservative group.

The Washington Post reported Monday that it had obtained from a liberal group a 1997-98 Federalist Society leadership directory listing Roberts, then a partner in a private law firm, as being a steering committee member in the group's Washington chapter.

Roberts has acknowledged participating in Federal Society events and giving speeches for the organization.

But on Monday, presidential press secretary Scott McClellan said, ''He doesn't recall ever paying dues or being a member.''

It's not that membership in the Federalist Society is an automatic disqualification from the federal bench any more than membership in the ACLU should be. It's that the dodge-and-duck strategy has now led to deliberately misleading the public. He doesn't recall being a member, yet he's on the steering committee? How lame an excuse is that?

And then there's this bit that, if true, is deeply disturbing:

The exchange occurred during one of Roberts' informal discussions with senators last week. According to two people who attended the meeting, 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. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).

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.

Good thing that no cases regarding religion (or values-based issues like abortion or gay rights or the death penalty) ever come up on the Supreme Court. Otherwise this guy would be sitting out for weeks at a time. Oh wait, looks like he will be.

This crosses dangerously into "unfit for confirmation" territory. Do we want to nominate a justice who's going to run away during some of the most contentious cases on the docket, leaving the possibility of a 4-4 tie in nearly all of them? Roberts has to explain and clarify that statement, and assure the county that he's able to do his job. Of course, he can always say that he can't recall ever talking to Durbin, I suppose.