April 26, 2005
Religious Bigotry & Judicial Nominations
Posted by Gordon Smith

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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