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Stopping a judicial conflict of interest

IN THE presidential campaign, a new threshold in church-state relations was crossed when Catholic bishops threatened to exclude Senator John Kerry from the Eucharist because of his support for Roe v. Wade. The Senate Judiciary Committee is now fully justified in asking these bishops whether the same threats would apply to Supreme Court nominee Judge Roberts, if he were to vote to uphold Roe v. Wade.

The bishops have made this question legitimate because Americans no longer know whether a Catholic judge can hear abortion cases without an automatic conflict of interest.

When judges may derive a financial gain from the outcome of a case before them, they must disqualify themselves; this requirement should be even more urgent when the gain in question is full Communion and the promise of eternal life. According to the American Bar Association's Code of Conduct for United States Judges, Canon 3, Section C 1 (c), a judge must disqualify himself when he has ''a financial interest . . . or any other interest that could be affected substantially by the outcome of the proceeding." Maintaining one's membership in the church and the prospect of eternal life surely count as such an interest.

Immanuel Kant held that no decision could be considered impartial or ethical if personal interest in the outcome played any role in it. It is time for this principle to be observed in our judiciary.

Asking the bishops to testify would be healthy. If they rescinded the threats made against Kerry, then Roberts would feel free to make his decision without the appearance of a conflict of interest, and Catholic politicians who support Roe v. Wade would gain renewed confidence in their advocacy. If the bishops repeated or confirmed their threats, the Senate Judiciary Committee should draft legislation calling for the automatic recusal of Catholic judges from cases citing Roe v. Wade as a precedent.

Of course, such a new law should cover anyone whose religion makes it impossible for them to decide on their own whether abortion should be legal; therefore, testimony should be taken from the leaders of Protestant, Jewish, Muslim, and other faiths as well. It is clear that several mainline Protestant denominations separate the issue of abortion from church membership and personal salvation; judges from these faiths would face no conflict of interest.

Even evangelical Protestants do not oppose abortion at the risk of being separated from a particular church, because their faiths are based on being ''born again," not on adherence to certain articles of faith or a catechism. In theory, the same Holy Spirit that made evangelicals born again could also move them to change a social or political view at any time. (In drafting mandatory recusal legislation, senators should probe the foundations of these beliefs and persuade themselves that evangelicals retained a meaningful, not just a technical, choice.) Inquiry into Judaism, Islam, and other religions should also focus on whether any of them make threats against members who hold particular views about abortion.

It is obvious that mandatory disqualification of Catholic judges from abortion cases would have only the most minor effect on their professional lives. Everyone agrees that people like Justice Antonin Scalia and Roberts are fully able to fairly adjudicate 99 percent of the cases that come before them.

In any case, a Senate investigation of this subject is overdue not simply because of the threats made against Kerry. Christian activists have won a series of court victories that allow use of taxpayer money to help finance their schools, fund their charities, and place their religious symbols in public spaces. If US taxpayers are going to subsidize activities by tax-exempt Christian organizations, they have the right to be told what constraints their followers are under while they sit in judgment of Americans who may not share their religion. When constraints amount to sanctions, impartial decisions are impossible; judges then owe Americans the duty of disqualifying themselves.

One would think Catholic judges would want such a measure in place as a means of honoring their own convictions. That this proposal will no doubt be controversial should not be a reason for failing to pursue it: Political advocacy by religious organizations is on the rise and will only become stronger. If the subject is ducked this time by the Senate Judiciary Committee, it will only come up later in a more aggravated form.

It's time to have this dialogue. Without it, the decisions of our highest court, already tainted by the Bush-Gore election, will increasingly be perceived as self-serving, political, and illegitimate.

Christopher D. Morris is a writer and critic in Northfield, Vt.

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