And so it has been with the nomination of Judge John Roberts from the DC Court of Appeals to fill the vacancy created by the retirement of Justice Sandra Day O'Connor.

Some of the attacks on Judge Roberts have been clearly partisan and blatantly untrue, such as the ads sponsored by NARAL Pro-Choice America, which fraudulently attempted to suggest that the nominee had supported abortion clinic bombers.

Attacks like these, however, can be dealt with as this one was: by shining the light of truth on the lies until they are exposed and withdrawn. More troubling are the debates that indicate to me that we have lost sight of just what it is a judge does.

On July 25, the Los Angeles Times ran a column by Jonathan Turley, a law professor at George Washington University. In that column, Turley described an exchange between Illinois Senator Dick Durbin (a Democrat) and Judge Roberts where Senator Durbin asked what Judge Roberts "what he would do if the law required a ruling that his church considers immoral." According to Turley, Judge Roberts replied "that he would probably have to recuse himself."

In the aftermath of Turley's column, Senator Durbin said that the exchange never happened. Turley, in turn, said that Senator Durbin and his spokesman Joe Shoemaker were his sources, that they had confirmed the story, and that they had insisted only that they not be named as the sources. At this point, it's unclear at best whether Judge Roberts ever talked to the Senator about recusing himself due to law/faith conflicts.

One of the side effects of the story, however, was a debate about the appropriateness of asking about Judge Roberts' faith at all. In a column in the August 2 Washington Post, E. J. Dionne Jr. asked, "Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to?"

After mentioning Senator Durbin's alleged exchange with the nominee, Dionne quotes Oklahoma Senator Tom Coburn (a Republican) as saying, " If you have somebody first of all who has that connection with their personal faith and their allegiance to the law, you don't get into the Roe v. Wade situation … I am looking for somebody who is not going to make that mistake again in any other area of life."

Dionne goes on to remind us of the Catholic bishops who called for Senator John Kerry to be denied communion because of his position on abortion. He concludes the column by saying, " But if religion is to play a serious role in politics, believers have to accept the obligation to explain themselves publicly. That's why it would be helpful if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice. President Bush has spoken about the political implications of his faith. His nominee should not be afraid to do the same."

The problem with this argument is that it views the court as a political arena rather than a legal one, which is to fail to understand just what the job of a judge is supposed to be. This confusion has long been fostered by those who hope to win in the courts the political victories they could not win at the ballot box. This was actually the great failing of the Supreme Court's decision in Roe V. Wade: the manufacture of a constitutional right to abortion that can not be found anywhere in the document at all. Making the law say what you want it to say instead of what it actually says is judicial activism at its worst, and it doesn't matter whether it's a conservative judge or a liberal judge that does it.

A legislator votes based on what he or she believes is right and what he or she believes is an appropriate matter for government to address. The same is true of a member of the executive branch of government. It might be a mayor saying that we need to protect our children by denying liquor licenses to convenience stores within five blocks of a school. It might be a United States Senator saying that we need to protect the electoral process by enacting campaign finance reform. To the extent that their faith determines what laws they will support and what laws they will oppose, it is a legitimate question.

A judge fills a different role altogether, however. A judge who is doing his job is not ruling based on what he believes is right but rather on what he believes the law says. To use the issue of abortion as an example, a senator votes for or against laws that either limit or protect legal abortion based on whether he believes legal abortion should be limited or protected by the law. A President advocates policies that either limit or protect legal abortion for the same reason. It doesn't matter, however, whether a judge believes that abortion SHOULD be limited or protected by the law, a decision that could well be informed by his faith. His job is to determine whether abortion IS currently limited or protected by law. If he doesn't believe the law is right and feels compelled by his faith to work to change it, then he can either vote for representatives who will pass laws accordingly, or he can resign from the bench and run for legislative or executive office himself.

That's why it's not appropriate to question judicial nominees on "the political implications of his [or her] faith". Their faith might instruct them regarding what the law ought to be, but it tells them nothing about what the law is. If, however, they would rule from the bench based on political implications of any kind, then they should not be disqualified by their faith. They would already have disqualified themselves, based on their failure to know the difference between a lawmaker and a judge.