Cathy Young has a provocative editorial on the recent judicial confirmation kerfuffle. The quick primer: Democrats have been blocking President Bush's judicial nominees at an unprecedented rate, and Republican Senators have begun to cry foul on grounds of religious bigotry.
Young argues that the Democrat position isn't about bigotry, but public policy:
Of course, the issue isn't simply ''faith," but a nominee's views on public policy issues. A pro-abortion-rights litmus test for federal judges may be wrong, but it's preposterous to claim, as some conservatives have, that it amounts to a religious test that disqualifies ''serious" Catholics and evangelical Protestants from public office. Surely, it would apply just as much to atheists or agnostics who oppose abortion on secular grounds.
Eugene Volokh agrees with Young: "One can plausibly fault the Senate Democrats' opposition to the President's judicial nominees on various grounds, but 'religious bigotry' is not one of them."
Steve Bainbridge offers this response: "The Democrat litmus test for judges has a disparate impact on devout Catholic and Evangelical nominees for judicial office, which is a perfectly appropriate ground for criticizing that litmus test."
To which Young responds: "In a way, Prof. Bainbridge's invocation of 'disparate impact' confirms a point I made in my column: that the cry of 'anti-religious bias' has become the 'political correctness of the right,' a 'faith card' similar to the left's race/gender card."
My colleague Ann Althouse agrees: "Both Democrats and Republicans have exploited religion to manipulate people in the current squabbles over the judiciary. Some Democrats assert that nominees are religious zealots who will drag us into theocracy. And Republicans will try to immunize nominees because their unacceptable views have a religious source. Both parties need to avoid stirring antipathies about religion and irreligion for political gain."
I am usually quite content to join anyone who accuses politicians of manipulation, but this is an easy sidestep, isn't it? Even if I agree with Cathy Young and Eugene Volokh (and I do) that the Democrats' motivation is based on abortion policy and not religious bigotry per se, Steve Bainbridge's empirical claim that devout Catholic and Evangelical nominees will be disproportionately affected deserves a response.
To those who support the status quo with regard to abortion, Steve's claims of disparate impact ring hollow. Yes, nominees who advocate the usurption of established constitutional rights will be disproportionately affected by a policy of upholding constitutional rights, but so what? Setting aside for the moment the fact that abortion is sui generis in constitutional discourse, I think that Steve is concerned that an effective ban on devout Catholic and Evangelical nominees will affect not only abortion cases, but also many other areas of the law. This seems like a plausible claim, though it is not self-evident, as I suspect that many "religious" nominees would be willing to uphold the status quo on abortion. Nevertheless, let's assume Steve is right. What can be done?
Here is the root problem: we disagree about abortion, and rather than confronting the issue directly through democratic institutions, we have allowed the judicial confirmation process to assume the status of an impoverished constitutional convention. The obvious -- and almost certainly unworkable -- solution is to craft a sensible constitutional amendment on abortion. While this would not remove abortion completely from judicial purview, it would substantially narrow the debate in the courts, thus lowering the stakes over judicial nominees. Despite all of the vitriol that is expressed on this issue, I am convinced that a substantial majority of Americans could get behind something that might please neither Steve Bainbridge nor Cathy Young, but would lead to greater domestic harmony on this issue. Until we do that, abortion politics will continue to dominate our judicial selection process to our collective detriment.
Cross-posted on Times & Seasons.
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1. Posted by Christine on April 26, 2005 @ 7:38 | Permalink
Wouldn't Steve's argument that having a pro-abortion litmus test has a disparate impact on devout Catholics and Evangelicals go both ways? Doesn't having a pro-life litmus test have a disparate impact on [insert here: Methodists, Episcopalians, secular humanists, atheists, whatever]? Either way, abortion litmus tests will have a disparate impact on some because of their religious views.
2. Posted by Gordon Smith on April 26, 2005 @ 7:47 | Permalink
No doubt right, Christine. My post is really an effort to argue that we dispose of this litmus test altogether. Even as I bemoan the use of abortion as a litmus test, however, I wonder whether litmus tests are simply an inevitable byproduct of modern politics. If not abortion, then something else.
3. Posted by Jack Chin on April 26, 2005 @ 9:27 | Permalink
I don't know if any of these nominees fallin this category, but potential lower court judges, like potential jurors, who are unable or unwilling to comply with the law as it is, right or wrong, should not be seated.
4. Posted by BruceH on April 26, 2005 @ 10:14 | Permalink
Well, for one thing, I have yet to see any indication what-so-ever that qualified Christians are being denied appointments to the bench. I do see some evidence that religious ideologues are being excluded, and rightly so. It is not so much that religion has no place in society (it does) but that we are a 'nation of laws instuted among men' and as such, should never apply solely religious tenants to legal decisions. Any judge who does so (e.g. Scalia) is, in my opinion, explicitely working against the rule of law, and for the rule of theocracy.
Recently, the right wingers have been calling liberals and progressives ugly names: names such as traitor and unamerican. To that, I have one thing to say: the repugs can project their own foibles onto the Dems as much as they like, but I will not be swayed, as I hope you are not.
5. Posted by MJ on April 26, 2005 @ 12:40 | Permalink
BruceH,
Gee, I wonder where Republicans get the crazy idea that some Democrats are hostile to judges who profess strong religious beliefs.
Every judge that has been nominated has been rated as qualified or well-qualified by the ABA, yet you aren't aware of a single "qualified christian[]" who has been excluded. Qualified according to who? Let's hear, just once, a substantive argument for why any of the nominees being filibustered are not qualified to sit on the federal bench.
Calling people "religious idealogues" without any supporting evidence isn't an argument - it's hit and run slander.
6. Posted by on April 26, 2005 @ 13:08 | Permalink
Post-GHWB Republicans have already co-opted "conservative" and "Christian", let's not let them pollute "devout", "Catholic" nor "Evangelical". Prof. Bainbridge's statement that the litmus test "has a disparate impact on devout Catholic and Evangelical nominees" is simply wrong. Check the candidates positions on the death penalty.
What Bainbridge really means is that the filibuster/litmus test has the desired impact on nominees who support the current administration's choices on a panoply of issues. Dressing it up as anything else is typical, distasteful DC pretexting.
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