The "faith card": Right-wing P.C.

My latest column, which takes issue with conservative complaints about the "religious bigotry" of Democrats who are blocking socially conservative judicial nominees, has elicited (via the Volokh Conspiracy) an interesting response from Professor Stephen Bainbridge.

To my argument (with which Eugene Volokh agrees) that the issue is not religious faith as such but public policy views, Prof. Bainbridge replies that Volokh and I overlook the issue of "disparate impact." Under this principle, employment practices that are not overtly unfair constitute illegal discrimination if they substantially, disproportionately and adversely affect members of a particular race, ethnicity, gender, or religion. Prof. Bainbridge argues that opposing judges with hardcore conservative views on abortion or gay rights has such a selective adverse impact on "devout Christians."

Two points:

1. The human resources guide Prof. Bainbridge quotes refers to "any qualifying test that hurts minorities, and isn't job-related" (emphasis added). Indeed, the U.S. Supreme Court has stated that in order to be a violation of Title VII, an employment practice must be "unrelated to measuring job capability." For instance, job interviews that focus heavily on a prospective employee's familiarity with sports -- tending to screen out women -- are legally acceptable if you're hiring writers for a sports magazine, but not if you're hiring stockbrokers.

Is Prof. Bainbridge saying that a judge's views regarding the legality of abortion are not "job-related"? If the Democrats were refusing to confirm someone as, say, Secretary of Agriculture based on his or her anti-abortion zealotry, that would be mere prejudice. However, protecting the legal right to abortion is -- for better or worse -- a key part of the Democrats' political agenda. Thus, disqualifying judges who not only oppose abortion but passionately advocate its banning is, from their perspective, directly job-related (hence not discriminatory under the "disparate impact" standard).

2. Correct me if I'm wrong, but weren't conservatives supposed to be against nebulous standards like "disparate impact"? Creative interpretations of what is and isn't "job-related" have led to some absurd court decisions -- throwing out "gender-biased" physical strength and endurance tests for firefighters, or nixing written tests for promotions in the police force because they are disproportionately flunked by minorities. Do conservatives now want to extend this "logic" to the absurd conclusion that a prospective judge's views on important legal issues cannot disqualify him from the job if those views are based on religion? (By the way, would that also apply to a "devout Muslim" who advocated the adoption of Islamic sharia law in the United States? Just wondering.)

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.

This still leaves open the question I raised about a double standard toward religious and non-religious beliefs. Take a hypothetical nominee for the federal bench who has publicly stated that male dominance is essential to a healthy social system. He is (a) an evangelical Christian whose beliefs are rooted in his understanding of biblical principles, or (b) an agnostic whose beliefs are rooted in his understanding of sociobiology. It seems that according to Prof. Bainbridge, the Senate would be allowed to hold the nominee's views against him in scenario (b), but not in scenario (a). Personally, I think that this particular belief ought to disqualify him whether it's based on the Bible, the Koran, Confucius, Darwin, Nietzsche, or the Gor novels.

Conservatives have been arguing for some time that the "no establishment of religion" provision of the First Amendment should not be interpreted so as to discriminate against religious viewpoints: for instance, political views rooted in religious values are just as legitimate as ones rooted in secular moral principles. Fine. But then let's really treat religious and non-religious beliefs equally.

Comments

Franklin Harris | April 25, 2005, 8:53pm | #

This anti-Gor bias must end!

Xrlq | April 25, 2005, 9:19pm | #

1. I don't think it's reasonable to argue that a judge's views on abortion tell you anything about that judge's competence, one way or the other. Do they tell you anything about that judge's desirability on the bench from the perspective of a liberal Democrat? Of course, but that proves too much. If everything a prospective employer might want to discriminate over is ipso facto presumed "job-related," anti-discrimination laws mean nothing.

2. Sauce for the goose, etc. There are decent arguments to be made, pro and con, for allowing disparate impact to serve as a proxy for actual discrinatory intent. Whatever rules we settle on should apply to everyone equally.

oblomov81 | April 25, 2005, 9:24pm | #

The GOP leaders do not want "strict constructionist" justices. They want conservative activists.

If you look at the record the current justices have of overturning state or federal laws- that is, being "activist justices"- the three who are the most hesitant to do so are William Rehnquest, a traditional (Goldwater) conservative, and Clinton's two appointees, Stephen Breyer and Ruth Bader Ginsburg. Yet, the GOP bigwigs like to accuse Rehnquest of having gone soft and Breyer and Ginsburg of rampant liberalism. Meanwhile, Scalia and Thomas have relentlessly hacked away at the 11th amendment and show no hesitation to target state or federal laws they consider "too liberal."

The Terri Schivo case is an excellent example of how this works on the federal court level. Delay and co. enjoyed lambasting the "liberalism" of the federal judges involved, when in reality they were doing exactly what "conservative" judges would do- stick to the law and refute the claims of those who would want to trim or eliminate it for personal or political reasons.

Thankfully, a recent article tells us that there will be no investigation of judges due to the Schivo case, and that Delay's fascist rants are being ignored: http://news.yahoo.com/news?tmpl=story&u=/ap/20050426/ap_on_go_co/house_judges

Xrlq | April 25, 2005, 9:28pm | #

Oblomov81, you obviously have no idea what you are talking about. Do you even know what the Eleventh Amendment is, or does?

oblomov81 | April 25, 2005, 9:32pm | #

Franklin Harris-

Thank you for your comment. The media pays WAY too much attention to the issue of abortion when it comes to the courts, especially the Supreme Court. Funny, every time I watch "Meet the Press," Russert jabs his guest with the question "Do you think the President will appoint someone who would overturn Roe vs. Wade?" It gets really exhausting.

Speaking as someone who generally supports abortion rights, I could not care less if Bush appoints someone who is anti-Roe to the court, precisely because William Rehnquest, who we can safely assume will be the next to step down, is himself anti-Roe. Thus, since the Supreme Court battle lines on abortion are so clearly drawn, there is no reason for the pro-choice camp to freak out. Besides, it would be best for Bush to preserve the current balance between conservatives, liberals, and moderates in the court anyway.

And the court actually is quite conservative, despite what angry GOP pundits claim. They have upheld more criminal convictions and death penalties (despite the recent ruling on juveniles, which was a good end with questionable means) than any court before them.

Cathy Young | April 25, 2005, 9:32pm | #

Xrlq: So why exactly shouldn't Democrats use the criterion of "a judge's desirability on the bench from the perspective of a liberal Democrat"? Don't Republicans do the same?

Xrlq | April 25, 2005, 9:59pm | #

Do they? No, else Ruth Bader Ginsburg and half the judges on the Ninth Circuit would have been filibustered out of their present jobs. Should they? Hell, no. Both parties should be basing their decisions on the nominees' qualifications as judges, not on the likelihood that they will impose the "right" political agenda by judicial fiat.

Cathy Young | April 25, 2005, 10:08pm | #

According to this article, almost as many Clinton judicial appointees in his second term were blocked by the Republicans as Bush appointees have been blocked by Democrats.

The Real Bill | April 25, 2005, 10:13pm | #

Cathy,

Wouldn't the percentage blocked be more relavent than the abosolute number?

Polybius | April 25, 2005, 10:34pm | #

Damn Scalia and Thomas and their Admendment XI bashing ways!

Just the other day they construed the Judicial power of the United States to extend a suit in law against one of the United States by a Citizen (or Subject) of a Foreign State.

Grr!

Cathy Young | April 25, 2005, 10:35pm | #

The percentage as well as the number is very close.

67% of Bush nominees have been confirmed.

35 out of 51 Clinton nominees were confirmed. That's about 69%.

Xrlq | April 25, 2005, 10:36pm | #

Blocked != filibustered. The fact that one Republican Senate only managed to block "almost as many" Democrat nominees as the Democrat faction of another Republican Senate did to Republican nominees speaks volumes.

The Real Bill | April 25, 2005, 10:40pm | #

Thanks for the info, Cathy.

Personally, I hate the filibuster. Let the party in power have their nominees. If it turns out badly, oh well! I see a silver lining in the potential loss of support for both major parties over time.

kevrob | April 25, 2005, 11:00pm | #

Let's do a thought experiment. Assume that I attended law school and eventually was appointed to or elected to the state or federal bench. Moreover, I had never written any law review article, made any speech or written any appellate opinion that commented on Roe v. Wade or related cases in any way. Since I took this career path, rather than the one in Our World, I never ran for another office, and certainly don't post my opinions about controversial subjects on blog comment sections. (Yes, I am David Souter, and you demand your $5.00.) Nobody has Clue 1 on what my opinion might be about a case that could limit or even overturn Roe. After the President picks me for a Court of Appeals or SCOTUS spot, I refuse to answer questions about any such hypothetical case, as I may have to rule on it some day.

What would the Alliance for Justice types do? They'd notice that I attended a Catholic grade school, graduated from a Catholic high school, and have a B.A. from a Jesuit University. Newspaper reporters would look up my family connections, and notice that one of my brothers is a Roman Catholic priest. Editorialists would start to refer to me as a "Catholic." Any government functionary who asked me about my religion - FBI background checkers, Senatorial staffers - would be given a quick lesson in Article VI, section III of the Constitution of the United States, which says, ...but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Now, does anyone doubt that the Pro-Choice crowd would fear that I was in communion with Rome, and therefore unable to be trusted with the power to rule on constitutional law, lest I fail to uphold their view of the right to privacy, and start lobbying against me?

I expect that a few pro-lifers would be scratching their heads, wondering why I didn't proclaim Jesus' name, but amused that the Nan Arons of the world had nothing concrete to pin on me.

In fact, I do have a Catholic education, and a priest-brother, even though I am, myself, a mildly pro-choice atheist who has shot his mouth off on the issue aloud before potential constituents and online. So, should I ever get a law degree, there'll be no nominations coming my way!

I do think that, should the President nominate a nominal Catholic who has never made public pronouncements on the abortion issue, reflexive opposition to such a nominee does smack of bigotry. After all, about half of American Catholics don't agree with the hierarchy on the abortion issue, and even some of them who agree that it is a sin don't want to write that stricture into law. Nominating a Protestant from a conservative sect may be more of a pointer. One assumes that, if a Protestant disagrees with the dogma of his congregation, he will quit it and join one more to his liking.

Of course, the torches and pitchforks would really come out once it was learned that I was a Reason reader!

Kevin

Cathy Young | April 25, 2005, 11:23pm | #

I do think that, should the President nominate a nominal Catholic who has never made public pronouncements on the abortion issue, reflexive opposition to such a nominee does smack of bigotry. After all, about half of American Catholics don't agree with the hierarchy on the abortion issue, and even some of them who agree that it is a sin don't want to write that stricture into law.

But has there ever been such a case? Not that I know of. That's another thing that I find aggravating about all these claims of "religious bigotry" and "discrimination." The conservatives who make this argument are well aware that the supposedly anti-Catholic pro-choice litmus test does not exclude Catholics who are either pro-choice, or personally opposed to abortion but not in favor of outlawing it. Their explanation is that it excludes "serious Catholics," or "devout Catholics" -- thus implying that all those other Catholics, like Rudy Giuliani, are neither serious nor devout. Who's spouting religious bigotry now?

kevrob | April 26, 2005, 12:17am | #

....implying that all those other Catholics, like Rudy Giuliani, are neither serious nor devout. Who's spouting religious bigotry now? - C. Young

I wouldn't accuse them of not being "serious" nor "devout." I might suggest that they are confused, and maybe too gutless to quit that particular church. That might not be fair. The world is full of, to use Michael Harrington's term, "cultural Catholics", who, for reasons of family or ethnic identification are loathe to cut ties with Holy Mother Church even if they are, in her eyes, heretics. Perhaps since my major theological disagreement with the RCC is about the existence of a god, I see these things from a more hardcore point of view than a Rudy Giuliani does.

Miguel Estrada caught a lot of flack for being an "extremist" and assumed pro-lifer, didn't he? He didn't have a paper trail on the issue, and wouldn't answer as to how he would rule.

Kevin

Mo | April 26, 2005, 12:28am | #

Cathy,
May I call you butter because the last few weeks, you've been on a roll. I've been enjoying your recent articles more than usual, and I generally enjoy your articles a lot. One of the things that incensed me about the Schaivo case is the slander thrown at Judge Greer, a conservative Baptist, because he followed the law (GASP!). The current Republican Party powers are not interested in constitutional limits, but their own views. They have gotten drunk on the power of government in their short time in power, much the same way the Democrats were. They even got to Dale Gribble.

I disagree with oblomov though, Justice Thomas is one of the most thoughtful and honest justices in the Supreme Court. He will rule the way the Constitution is written, even if he disagreeswith it. He is strict with the letter of the law and that is what makes him such a good justice. If I had my way, he would be first in line, ahead of Scalia (who I believe allows ideology to influence his decisions a tad much), to become Chief Justice.

Justin | April 26, 2005, 12:48am | #

The attacks on Young have bordered on the extreme. Without touching some of the more rediculous arguments here, I do want to respond to kevrob that regardless of Estrada's lack of a "paper trail" (due more to a refusal to release the paper trail rather than it not existing), Estrada's politics were very well known by beltway types, his extremism even amongst his fellows in the Federalist society noted. Indeed, my guess is that the two-thirds of Bush's nominees that have *not* been blocked were not all athiests.

Biff | April 26, 2005, 12:56am | #

Blocked != filibustered. The fact that one Republican Senate only managed to block "almost as many" Democrat nominees as the Democrat faction of another Republican Senate did to Republican nominees speaks volumes.

It does, but not in support of your side. Republicans (specifically, Orrin Hatch) blocked Clinton's nominees from getting a floor vote because they knew those nominees would be confirmed, even by the majority-Republican Congress. That folks like yourself object to 40 Senators preventing a vote, but have no problem with a single Senator preventing a vote, does in fact "speak volumes", about your hypocrisy and mindless partisanship.

Fr. Bill | April 26, 2005, 12:58am | #

Many of these comments, and your own initial post here Cathy, prove what some critics here had feared all along: you are taking as evidence of how a person like, say, Bill Pryor, would behave as a judge his religious faith. That presumes the old anti-Catholic bigotry that a Catholic person cannot distinguish between what she believes the law ought to be from what the law is, that she will simply be waiting to see which way the Pope says to vote. Granted, Democrats prefer judges who brook no such distinction in their own jurisprudence, but that only confirms that the inquiry here is in fact about religion and not law as such. It is not as if opposition to Roe depends upon religious faith, which is the apparent worry here. And religious faith surely should not stand as a proxy for substantive views about the law. If it did stand as a proxy, as Cathy seems to be suggesting, why would that not then be an unconstitutional religious test for holding office?

If you can point out legal views of Judge Pryor that make him unacceptable, well and good. But I recall his being asked by Sen. Schumer about his religious views, and I think that does go beyond the line toward having a religious test.

Dan | April 26, 2005, 2:05am | #

Their explanation is that it excludes "serious Catholics," or "devout Catholics" -- thus implying that all those other Catholics, like Rudy Giuliani, are neither serious nor devout. Who's spouting religious bigotry now?

I'm not sure who is spouting religious bigotry, but it certainly isn't the people who claim that there is no such thing as a pro-choice devout Catholic.

Suppose I said "I consider myself a devout Methodist. I believe that it is every parent's right to kill their children and eat them, if they see fit to do so." Would it be religious bigotry to say "Dan, you are obviously not really a devout Methodist"? Of course it wouldn't. Even if I hedged my remarks by saying "oh, I agree with the rest of Methodist teachings. I just disagree with them on the subject of eating kids." Or "I would never eat children myself, you understand, but I respect the parents' privacy and authority over their progeny." There's just no evading the simple fact that Methodists think child murder is wrong.

The Catholic Church's position is that abortion is wrong, always, now and forever, period. It is, from the Church's perspective, the cold-blooded murder of an innocent child. End of debate. You can't call yourself a devout member of a religion and then turn around and blow off core beliefs of that religion. That's not what being devout is.

thoreau | April 26, 2005, 2:45am | #

We all know what this is about: abortion. We can say what we want about tradition, "judicial temperment", majority rule, the President's power to shape the courts, etc. etc. But at the end of the day it's about picking the next Supreme Court Justice, and we all know that the next Supreme Court Justice will be chosen based on abortion. The Senators might give long speeches about this that or the other thing, but at the end of the day it will be about abortion. It shouldn't be, but that's the way it is.

Some people on this forum, including many who would oppose a state law banning abortion, might argue that the solution is to overturn Roe vs. Wade and take the matter out of the judicial branch. And they might have a point. But overturning that ruling won't make the controversy go away. People will still seek a judicial remedy, however rightly or wrongly.

So here's my only half-facetious proposal: Create a fourth branch of government. Call it the "Obstetric Branch." Empower this branch of government to handle one issue and one issue alone: Abortion. I don't care how this branch is elected, how the seats are apportioned, and what their terms are, because I won't participate in those elections. The Obstetric Branch can ban it, legalize it, restrict it, turn it over to the states, subsidize it, deny any and all federal funding, whatever. They can pass a law allowing abortion up until the final toenail is delivered or they can institute the death penalty for any pharmacist who dispenses RU486. Whatever. Just take it away from the other branches of government.

I know, it will never happen. I'm not even all that serious about it. I just bring it up to make the pessimistic point that only extreme measures will defuse this issue.

Then again, I'm in a pessimistic mood today. I spent two and a half hours holding a professor's hand as he waded through a draft of a research article. Not fun.

Cathy Young | April 26, 2005, 3:34am | #

Fr. Bill:

As I've pointed out, no one has made an issue of the religious beliefs of Catholics who take the view that while they are personally against abortion, they are not in favor of a ban on abortion.

In Pryor's case, the opposition to his nomination (outlined here, for instance) did focus on his legal opinions and policies as Alabama's attorney general. It's pretty clear that he had a strong commitment to overturning Roe and, barring that, to restirction abortion as much as possible under Roe. Having said that, I actually agree that his nomination probably should not have been blocked. But anti-Catholicism had nothing to do with it. Several Senators who most strongly opposed his nomination were themselves Catholic, though according to Dan they weren't "real" Catholics.

Dan -- if it is indeed the duty of a devout Catholic to actively oppose legal abortion, then it's hardly "bigotry" for pro-choice activists to oppose the nomination of "devout Catholics" to the federal bench.

The Real Bill | April 26, 2005, 4:32am | #

I have a friend who is a devout evangelical Christian. He is personally against abortion to the point that were his wife's life in jeopardy due to a pregnancy, he (and she) would not abort the child. (Yes, they might change their minds due to the duress of the situation, but this is their view.) But get this, he would not make abortion illegal if it were his decision! Why? Because he doesn't think he has the right to make such a big decision for others. The guy is basically an evangelical libertarian! Why, oh why, can't more people be this way? Ideologues that don't want to impose their belief system on others... wow! He only asks that he not be subjected to the rule of secular ideologues on issues such as public school sex ed. and the like. Unfortunately, ideologues of most stripes just can't let people be. I used to think that ideologies were the problem, but now I realize that it's just the control freaks, regardless of ideology. IMO, the only moral ideology is libertarianism. As my father likes to say, "Whatever floats your boat... whatever melts your butter."

kevrob | April 26, 2005, 6:41am | #

I don't happen to believe that newly fertilized eggs are human persons, as that term is used in the Constitution, deserving of all the civil rights any newborn babe enjoys cradled in his mother's arms, but people who do happen to believe that - whether they come by that belief from religious teaching or their own moral logic - can hardly be expected to take an attitude of "oh, abortion isn't for me, but I wouldn't impose my views on you." By their way of thinking every abortion is imposed on a rights-bearing human being. If I agreed with their premise, I'd sure as hell be trying to prevent the "murder of innocents" too.*

It is not for nothing that pro-lifers compare the "personally opposed" crowd to someone in 1859 who "would never own a slave, but, hey, to each his own." I'm not saying A, but if I did, I'd damn well say B. (Apologies to James Burnham.)

Kevin

*And, when I was a "good Catholic" that is precisely what I believed, and for the same reason. We were never taught that restriction of "reproductive rights" was some sort of plan to keep women in a subservient position. Anti-abortionism was sold to us from a natural law/human rights position. Perhaps the Protestant pro-lifers combed scripture for verses that can be interpreted as commands from the almighty on the issue. Good old scholastic philosophy was all we needed to be convinced, backed up by the teaching magisterium of the church, and the stray encyclical.

Blunt | April 26, 2005, 7:02am | #

Bainbridge has a point: since leftists have played the disparate impact card with gusto, and quite often in an outrageously moronic way, it serves them right when they get hoisted by their own petard, period.

You know, sauce for the goose...

Gerry | April 26, 2005, 7:36am | #

"ake a hypothetical nominee for the federal bench who has publicly stated that male dominance is essential to a healthy social system. He is (a) an evangelical Christian whose beliefs are rooted in his understanding of biblical principles, or (b) an agnostic whose beliefs are rooted in his understanding of sociobiology. It seems that according to Prof. Bainbridge, the Senate would be allowed to hold the nominee's views against him in scenario (b), but not in scenario (a). Personally, I think that this particular belief ought to disqualify him whether it's based on the Bible, the Koran, Confucius, Darwin, Nietzsche, or the Gor novels."

I find this strawman to be less than compelling, although you did knock it down with a certain flair after a very solid set-up.

We don't need to take a hypothetical extreme strawman. We can use a very real example-- William Pryor. The primary concern over him is that he feels so strongly about his religious, pro-life views that his nomination should be scuttled. While there are clearly those who believe that being pro-life is comparable to believing in male societal dominance, the fact is that being pro-life is a mainstream view. It may or may not be the majority view, depending on the poll and the way the questions are phrased, but it is not 'out there'.

So we are not dealing with a particular belief that should disqualify the candidate regardless of what it is based upon. But that is exactly what is being done. The Democrats are trying to disqualify Pryor, and others, for this very view. And they are doing it by demonizing it as being out of the mainstream by playing upon people's fear of a 'theocracy'.

On Althouse's blog, she quoted the very section I did above. The very first reply on it was a person who also brought up Pryor, and spoke of the Democrats in that person's circle:

"Pryor's voting record shows he can separate his conservative religious views from his wielding of the gavel - but they just don't trust him."

And why don't they trust him? Because of his religious views. That's discriminatory. And it is wrong.

Tom Perkins | April 26, 2005, 7:36am | #

XRLQ wrote: "Blocked != filibustered. The fact that one Republican Senate only managed to block "almost as many" Democrat nominees as the Democrat faction of another Republican Senate did to Republican nominees speaks volumes."

Biff replied: "It does, but not in support of your side. Republicans (specifically, Orrin Hatch) blocked Clinton's nominees from getting a floor vote because they knew those nominees would be confirmed, even by the majority-Republican Congress. That folks like yourself object to 40 Senators preventing a vote, but have no problem with a single Senator preventing a vote, does in fact "speak volumes", about your hypocrisy and mindless partisanship."

Biff is right, but I cordially hate his name ;^)

The "Block", whereby a nominee's home state senator can remove them from consideration, is a mechanism equally open to all party's dependent only on the success of the party at that local level. It was a proportional measure available to each party in the proportion they had political success locally. The "filibuster" is a purely obstructionist measure in this case acting nationally permitting an obvious political minority to prevent the national majority from having it's say. After the rules a simple majority of the Senate feels are followed, the Constitution prescribes an up or down vote.

I also have to point out that the 3/5ths majority to end a filibuster was lowered to that from 2/3rds by the Democrats when the Republican population of the Senate seemed to rise above that 2/3rds level semi-permanently in the late '70's. So screw the Dems, they deserve it.

The protection for a minority is intended to be found in the structure of government, the plain text of the constitution, and the respect for a common understanding of that document that exists commonly and publicly. Having worked tirelessly to destroy that for about a 100 years, the Dems should enjoy the fruits of their labors.

The notion that that traditional Christians tend have political views that reasnably exclude them from appointed office, is bigotry in result and therefore bigotry in fact. The disparate impact standard either is fair to use on this question or it is fair to use nowhere--but in this case, in her original argument, Cathy Young makes a distinction where no difference exists.

Tom Perkins | April 26, 2005, 7:44am | #

This: "Biff is right, but I cordially hate his name ;^)"

Should have this after it:

"He also beside the point. 49 are a small enough minority that they should be unable to prevent a vote. The fillibuster is qualitatively different from the block. The block is also a silly tradition which should be done away with, I hope the Republsicans go there next.

dpmacmanus | April 26, 2005, 8:45am | #

Fr. Bill-- Sen. Schumer did not bring up Pryor's religion at the hearing-- Sen. Hatch did, over Democratic objections. (Hopefully top link will work, or bottom one will). Also, objections to Pryor come not from the philosophical basis for his views, but for the vehemence with which they have been expressed. If he actually believes, as he has written, that Roe v Wade is worse than Dred Scot or Plessy v Ferguson, it is far from unreasonable to wonder about his ability to uphold the law. Also, note that many Catholics disagree with Church views on abortion, or the death penalty, or the war in Iraq.


http://www.pfaw.org/pfaw/general/default.aspx?oid=7695&print=yes&units=all

Jeff the Baptist | April 26, 2005, 8:58am | #

Correct me if I'm wrong, but weren't conservatives supposed to be against nebulous standards like "disparate impact"?

There are well established statistical standards for disparate (or "adverse" as some literature calls it) impact. The most common one is an 80% reduction in selection rate of a minority in comparison to the majority group. These aren't nebulous, but fairly concrete.

Ben | April 26, 2005, 9:11am | #

The Real Bill wrote:

"I have a friend who is a devout evangelical Christian. He is personally against abortion to the point that were his wife's life in jeopardy due to a pregnancy, he (and she) would not abort the child. But get this, he would not make abortion illegal if it were his decision! Why? Because he doesn't think he has the right to make such a big decision for others."

Sorry, but that's just dumb. Pro-lifers oppose abortion on the grounds that it is murder. For someone to say that they would never kill their own unborn child, but what you do with yours is your business is asinine in the extreme. That's like saying, "I don't really believe in spousal abuse and would never hit my wife, but what you do at your house is your business." Puh-leeze.

David Throop | April 26, 2005, 9:17am | #

You don't have to resort to hypotheticals.

In Texas, Andrea Yates will be retried for the killing of her five children. The Harris County prosecuter will try her under capital murder charges, for which he can seek the death penalty. He will probably not actually seek the death penalty, but trying her under capital murder allows him to exclude from the jury anyone whose religious beliefs would prohibit them from imposing a death penalty. Which of course has a disparate impact on committed Catholics, Quakers and Jehovahs Witnesses.

joe | April 26, 2005, 9:22am | #

"The notion that that traditional Christians tend have political views that reasnably exclude them from appointed office, is bigotry in result and therefore bigotry in fact."

Such a notion is bigotry - or rather, would be bigotry, if anybody actually held it.

190 of George Bush's 200 judicial nominees have been confirmed. How many of those 190 could by characterized as "traditional Christians?" 100? 150?

Ben | April 26, 2005, 9:28am | #

Fr. Bill,

Thanks for bringing up Bill Pryor because he is an excellent example of what the Dems are doing. It is true that Pryor is personally opposed to abortion, and it is true that he has stated this position publicly. This is what the Dems are upset about. But it is also true that he has a public record as Alabama AG of upholding and enforcing the laws on the books, including taking actions and issuing legal opinions that infuriated the pro-lifers and other social conservatives. Even the state's Democrats and liberal newspaper editorial boards endorsed his judgeship.

But at his Judiciary Committee hearings he had to put up with crap like being asked about his family vacation choices (he chose not to go to Disney World with his kids during "Gay Days"). Later, the Dems said they had "more questions" for him. Three times, teleconferences were set up for them to ask their questions, and three times Pryor sat by the phone and never got a call.

The bottom line is that Pryor is a brilliant lawyer that many think has a future as a justice on the Supreme Court. Dems want to nip him in the bud, and are willing to ignore his public record and question his personal beliefs instead. The Dems simply assume that like the liberals, Pryor is a judicial activist, even though his record says otherwise.

J Mann | April 26, 2005, 9:31am | #

Cathy, I started out agreeing with you, but on reflection, I think your hypo is too easy.

I agree with you that the hypothetical nominee who has stated an ultimate view (male dominance is essential) is toast.

The closer question is when the nominee's ultimate views are murkier, as they will inevitably be.

Take two new hypothetical nominees. Both have make statements that *might* suggest reliance on male dominance, or might not. Let's assume they have each said that our culture doesn't respect fathers enough, and that it is better for kids to have mothers and fathers than only one, and they've said easy divorce and abortion have led to a general loss of personal responsibility in this country.

Let's also assume that Nominee 1 is an active member of a Pentacostal Christian church, and Nominee 2 is an active member of a Gor re-creation group.

Assuming that Nominee 1 is unqualified *because he is a Christian* sounds like impermissible discrimination to me, while assuming that Nominee 2 is unqualified because he is a Gorean sounds like permissible discrimination.

It's rarely cut and dry enough to say "Mr. Ashcroft, you have stated that you won't prosecute abortion bombers." Instead, it's "Ashcroft's father annointed his head with Crisco - how can we be sure he will prosecute abortion bombers."

It's not crazy for Christians to feel discriminated against when they see that second thing.

Inspector Callahan | April 26, 2005, 9:33am | #

Is Prof. Bainbridge saying that a judge's views regarding the legality of abortion are not "job-related"?

This is a straw man. Not one of the president's conservative judge nominees has argued that abortion is illegal. Most, if not all of them will say they agree that abortion is legal, even if they think it's wrong. So, in this case, it's NOT job related - it IS discrimination.

but weren't conservatives supposed to be against nebulous standards like "disparate impact"?

Yes, they are. But, like abortion, it is the law. Why not follow the same legal guidelines as the liberals do? Every time conservative stand on principle, instead of using the tools at hand, they get stiffed. The left has no qualms about using whatever is necessary.

Personally, I think that this particular belief ought to disqualify him whether it's based on the Bible, the Koran, Confucius, Darwin, Nietzsche, or the Gor novels.

No, it shouldn't. This is where conservatives and small "l" libertarians disagree. It doesn't matter what he thinks - as long as he upholds the law to the letter. Orrin Hatch once said that women should stay home and make babies, but he co-sponsored laws that gave women more rights regarding child care and employment.

Should Hatch have never been elected to his position because he holds an unpopular view amongst libertarians?

Glenn Reynolds seems to think you got the better end of your argument. I respectfully disagree.

TV (Harry)

Mike K | April 26, 2005, 9:50am | #

Ruth Bader Ginsburg has said that Roe v Wade created a backlash by "trying to lead" a social revolution. It was a bad decision. Abortion was legal in California in 1969. The decision has poisoned US politics since and the polarization that so many complain of is getting worse. Clearly, Schumer was criticizing Pryor because of his Catholic religion. Pryor actually had a lot of support from the area where he had worked and a lot of it was from minority groups who refuted some of the racial slurs thrown at him.

The Bolton confirmation fight is a practice session for the Supreme Court battles. It will be ugly. I suspect Bush will time them to lead into the 2006 election. The Democrats may pay a real heavy price for this. I don't think the country is with them on this except the blue states like California.

It may cost the Republicans some votes from women but the Hispanic vote may compensate. Interesting times.

Cathy Young | April 26, 2005, 9:51am | #

dpmacmanus -- I deleted the first link you posted because it was so long it was pushing the margins apart and making the thread very difficult to read.

I'll respond to the other comments later.

Maddy O'hare | April 26, 2005, 10:00am | #

....implying that all those other Catholics, like Rudy Giuliani, are neither serious nor devout. Who's spouting religious bigotry now? - C. Young

I wouldn't accuse them of not being "serious" nor "devout." I might suggest that they are confused, and maybe too gutless to quit that particular church. - Kevrob

The "real" devout/serious Catholic wing deserves respect, but not seats on the Federal bench. Scorn for the confused and gutless hypocritical core who ignore the Pope's clear position on wars and the death penalty (on what amounts to a technicality) while charging headlong into battle over abortion isn't bigotry - it's well founded and logical.

Fr. Bill | April 26, 2005, 10:01am | #

DPMACMANUS, Thanks for the correction on the Schumer record. I do recall now that it was his repetition of "deeply held beliefs" that Republicans charged at the time was a reference to religion, though certainly Pryor's legal views include lots of deeply held beliefs. I thought I heard Sen. Biden concede this weekend that Dems had raised religion in those hearings, but I am glad to stand corrected. I apologize for my sloppiness in that regard.

I should be clear that I do not believe these nominations are being fought over on essentially religious grounds. But I do worry about the tone of much of the popular commentary, including some of the remarks above, wherein religion is thought to be a proxy for certain political views.

I think Democrats have a perfect right to oppose a nominee to the Supreme Court on the basis of their opposition to Roe, though I'm not sure I think ideology should play such a role as to the Circuit Courts, wherein it is pretty unimaginable that even the most ardent pro-life federal judge would not follow the precedents of Casey, Stenberg, et al. It may be that the Democrats have put themselves into a difficult position by precepitating this battle before a Supreme Court vacancy has even occurred.

joe | April 26, 2005, 10:03am | #

"The Democrats may pay a real heavy price for this. I don't think the country is with them on this except the blue states like California."

Sadly, no! Polling on this very issue is starting to come out, and the public is breaking against the Republicans in Schiavo-like numbers.

In the aftermath of the Feeding Tube Massacre, accusing Democrats of stopping Bush-league judges is like throwing Brer Rabbit in the briar patch. "Please don't accuse me of stopping Christian conservatives from taking over the courts!"

Mo | April 26, 2005, 10:05am | #

Dan,
Funny how abortion causes one to lose their "devout Catholic" status, but supporting the death penalty doesn't. It's just a club for those on the right to crow about how they're holier than their coreligionists on the left (which ain't too Christian if you ask me).

Ben | April 26, 2005, 10:08am | #

Inspector Callahan,

Good point regarding the use of disparate impact. Atheistic/agnostic/non-devout liberals constantly use Biblical scripture (incorrectly, in my view) to argue for higher taxes. It's called using (or trying to use) your opponent's standards against him. Since liberals love things like "disperate impact" so much, why not throw it back in their faces when it's convenient to do so? It's win-win. Either you use their own standards to help win the argument, or they win the argument and the bogus standard takes a beating.

joe | April 26, 2005, 10:18am | #

The problem you run into, Ben, is that there is no actual "disparate outcome" in the confirmation of conservative Christians to the federal bench. If anything, they are over-repsented.

Ben | April 26, 2005, 10:19am | #

Maddy & Mo,

First off, the Vatican has made it clear that not all church positions are equal. In statement after statement, the church has emphasized that their opposition to abortion trumps almost everything else in terms of social policy. They are against the death penalty, but rightly see killing children as more heinous than killing a convicted murderer. On war, they issue statements, but concede that it is ultimately a political decision.

As for deciding who is devout and who is not, there are two basic ways to look at this. When a person says he is Catholic but never actually shows up to mass except for photo ops, that is a pretty good indicator. And when someone opposes church teaching on almost every position of significance, that is also a pretty good indication. Anyone can CLAIM to adhere to any religion they want. Is it your position that if Ron Jeremy claims to be a devout Catholic we must take his word for it?

David | April 26, 2005, 10:23am | #

The question for me is "Is religion a set of values that a person chooses to a adhere to, or a system of values to be imposed over everyone regardless of choice?" If it's the latter, does the choice have any meaning?

Ben | April 26, 2005, 10:26am | #

Joe,

Do you have proof that they are over-represented? I don't know that it exists.

But regardless of what the current makeup of the courts is, the fact is that the Dems have now set up a standard which prohibits the brightest, most promising Christian judges from being confirmed unless they are squishy on the moral beliefs associated with their faith.

Another thing to consider is that the Dems are also engaging in a little race discrimination. Clearly, some of the judges they have opposed have been blocked because they are conservative minorities. Conservatives like Condi Rice, Clarence Thomas, and Colin Powell make the race card harder to play for the Dems. They do not want a Republican president to put the first Hispanic or black woman on the Supreme Court.

Ben | April 26, 2005, 10:32am | #

David,

Your question goes to what is really the heart of the problem. The "Borking" of judges only became an issue once liberal activists began inventing new constitutional rights from bench. As Justice Scalia has pointed out, once judges began converting their personal beliefs into law, their personal views became a legitimate issue, and the courts were politicized. That's why judicial activism is so horrible. In the past, qualifications, character, and judicial temperment were the only things looked at by the Senate, not the nominee's personal views on this or that.

David | April 26, 2005, 10:33am | #

Ben,

Wouldn't strict adherence to all church doctrines essentially make a judge, politician a puppet of foreign power? Are a person's beliefs supposed to change according to reflect papal decress that they don't agree with? If not, are they then no longer Catholic, or no longer devout?

Gene Sprenkle | April 26, 2005, 10:36am | #

Since when is it considered radical to ask our senators to vote yes or no? It would have been good to observe a supreme court justice Robert Bork at work but, the senate majority voted no. OK, no problem. It's true that a significant number of Clinton's appointees were blocked in his second term. The missing key in the present controversy glares because it is not mentioned. The senators are NOT VOTING! Why? Because the Dems are filibustering the current crop of nominees, one of them being Janice Rogers Brown. The Dems always brag about being advocates for blacks and minorities. IMHO, the Dems are cowards, hiding behind the unprecedented filibuster because one of these nominees (Brown) is black. The filibuster will not disappear if the GOP exercises the consititional option.

Warren | April 26, 2005, 10:43am | #

A GOR link?

Cathy, you are inviting speculation into your sexual proclivity. Last time I did that, my post was consigned to the memory hole. Or perhaps it was more about your do than your sexuality.

joe | April 26, 2005, 10:44am | #

"But regardless of what the current makeup of the courts is, the fact is that the Dems have now set up a standard which prohibits the brightest, most promising Christian judges from being confirmed unless they are squishy on the moral beliefs associated with their faith."

Really? Is that how you describe the 190 judges who have been confirmed? All morally squishy pro-choicers?

"Another thing to consider is that the Dems are also engaging in a little race discrimination. Clearly, some of the judges they have opposed have been blocked because they are conservative minorities." I just everyone to read this again. "the Dems are engaging in race discrimination (because) some of the judges they have opposed are conservative minorities." Shame on you.

Anderson | April 26, 2005, 10:46am | #

Sorry, but that's just dumb. Pro-lifers oppose abortion on the grounds that it is murder.

The Washington Post poll published on 4/25/05 finds that only 14% of Americans believe that abortion should always be illegal, with 28% more thinking it should be illegal "in most cases." Those dumb 28%

It's remarkable to ponder that 1/7 of the American people are the tail wagging the dog on the abortion issue.

p-dawg | April 26, 2005, 10:51am | #

Re: "devout" Catholics.

I am anti-organized religion. I'm stating that up front to make my position clear. If you break with the RCC on ANY major doctrine, including but not limited to abortion, war, death penalty, or birth control, you ARE NOT a devout Catholic. Period. That's like saying 'Well, I'm a hardcore Vegan, except for steak and bacon. I eat those, but I'm still a hardcore Vegan.' It just doesn't make sense. You're breaking the definition of devout by applying that term to those who DO NOT FIT IT.
I don't think a person's position on any one law should disqualify him or her from serving on the SCOTUS. That's why there's more than one justice. Duh. It isn't like there's only one view in our country, after all. It also isn't like we can pretend that *any* nominee is going to be 100% impartial. True impartiality's so rare as to be virutally nonexistent. It would be like blocking any justice who was a rabid gay marriage supporter. I realize everyone wants to push their agenda, but you have to let others push theirs, too. Otherwise we dip even further into fascism. Note: Judges legislate from the bench these days. Even the ones who are 'better' about it still do it. If you are waiting for justices to be appointed who do not legislate from the bench, well...you have a better shot at Godot dropping by.

Mike K | April 26, 2005, 10:54am | #

The polls do seem to show the public turning against the Repubs on this but I took a course in survey design and everything depends on the questions. I haven't seen them but wonder why they should be any different than the Schiavo polls which did not mention the husband's domestic status. How many people want their ex- holding the plug ?

The Bork hearings began this cycle of vitriol. The Republicans are always so inept at dealing with atmospherics like this that I am not that optimistic. Still, the Hugh Hewitt piece this week comes from a lot of experience on his radio program.

keith | April 26, 2005, 10:56am | #

nice try. "Thus, disqualifying judges who not only oppose abortion but passionately advocate its banning is, from their perspective, directly job-related (hence not discriminatory under the "disparate impact" standard)." It is a nice bit of legal reasoning, but not particularly useful for our current situation. By this standard ANY political view could be the basis for rejecting a nominee...and the advice and consent process was not created as a political screen, but rather as a competence screen.

If those opposed to the judges could point to their history of radical interpretation of the law to overturn previous abortion rulings, then you might be right. But most of the opposition is fear-based, not fact-based. The Democrats "fear" that a judge may rule against their pet laws based on the personal beliefs of the judge. Unless there is a pattern of such rulings in the past, then the Democrats are guilty of a sort of "religious profiling."

No amount of clever legalese can cover the fact that blocking judges over a disagreement with their politics is all about the raw exercise of political power and has nothing to do with principle.

joe | April 26, 2005, 10:57am | #

Why the Bork hearings, and not the 1968 Republican fillibuster of Abe Fortas?

Ben | April 26, 2005, 11:00am | #

Anderson: A clear majority of Americans believe abortion should be substantially restricted, yet the Dems cling to the extreme NARAL "no restrictions" position. Just who is the tail wagging the dog?

Joe: Several of the judges blocked have been blocked because they were seen as potential SC nominees in the future. Less promising-looking judges were not given the same level of s As for the minorities, stop wagging your finger like a school librarian. The Senate memos uncovered two years ago in that computer server scandal clearly showed that the Dems and the special interest groups they are beholden to were concerned with conservative minorities being put on the bench, specifically Hispanics.

David: The point is that judges are not supposed to make law. Even the most devout Catholic or Hindu or whatever is supposed to take his oath when he becomes a judge and interpret the law faithfully, without regard to his personal opinions. This whole "foreign power" crap harkens back to the bad old days of anti-Catholic bigotry so prevalent before Kennedy's election.

Ben | April 26, 2005, 11:04am | #

Oops -- left out part of my reply above. The second sentence to Joe was supposed to say:

Less promising-looking judges were not given the same level of scrutiny; in other words, the Dems had to pick their battles.

Sydney Carton | April 26, 2005, 11:14am | #

It is a canard to suggest that a devout Catholic nominee to the Supreme Court must uphold the "law" on abortion, when that law was created by the very Supreme Court. Congressmen aren't bound by earlier acts of Congress and can repeal or revise old laws. Likewise, the Supreme Court isn't bound by its own precedent and can overturn its rulings when it wants. Certain politicians might not want such rulings overturned, but to suggest that abortion is "law" that a Supreme Court must uphold is like saying that Brown v. Board of Ed was wrongly decided because it overturned the "law" of separate-but-equal.

The Democrats don't have a problem with Catholicism or a certain specific Protestant religion. The Democrats have plenty of "bad" Catholics in their group, people who consistently and publicly dissent from AUTHORITATIVE teachings of the Church (like abortion, not like the Iraq War, which is not authoritative and is a prudential judgment). The problem the Democrats have is that they reject orthodoxy. And while orthodoxy isn't a specific religion, it IS a religious qualifier because it is a philosophy of theology.

As the Supreme Court has legislated itself into more areas of traditional state influence, such as with abortion, these battles will only get worse. Ironically enough, the very act of making the Court into a Supra-Legislature has destroyed its credibility in its decisionmaking. Everyone knows what a Ginsberg opinion is going to say beforehand, because she's telegraphed her political opinion as expertly as a politician does before a vote is taken. And if the Court has lost its credibility, expect resistance.

joe | April 26, 2005, 11:18am | #

Opposing nominees for their political beliefs and political standing is not racial discrimination, Ben. Spare us the affimative action for righty minorities argument - the opposition has no more of a duty to approve a judge the oppose when he's a racial minority.

The Democrats are going to stop wingnut judges, even if the particular wingnut was nominated because of his skin color.

Sydney Carton | April 26, 2005, 11:21am | #

Captain Ed reports that Justice Brown, nominated for the Court of Appeals, has DARED the democrats to question her faith:

http://www.captainsquartersblog.com/mt/archives/004361.php

Ben | April 26, 2005, 11:30am | #

Joe,

You're missing the point. I don't believe in affirmative action, either. But Democratic memos showed that they were concerned about the political effects of allowing Bush to appoint the first Hispanic judge to the SCOTUS. As for blacks, Bush has made political hay out of the fact that he has so many black cabinet members and advisors, and the Dems don't want any more Clarence Thomases. No, the Dems should not approve a judge because of race, but neither should they oppose a judge because they fear the political repercussions of 1) allowing a Republican president to promote a high-profile minority and 2) allowing another high-profile conservative minority to put another crack in the myth of minority groupthink.

Mo | April 26, 2005, 11:45am | #

Ben,
I'm with p-dawg, just because there’s a ranking system, doesn’t mean that one is less of a sin. IIRC, opposition to the death penalty abortion come from the 10 Commandments. I didn’t realize there was a key in the Bible that ranked different types of murder. Could it be that the RCC sees more lives lost from abortion than the death penalty and as a result places that as a higher priority? Though I will say it’s typical that the protection of the unborn is a higher priority than the abuse of the alive and innocent by their own clergy.

Also, by the measure of many here, those that ruled in support of state laws that they disagreed with, see Judge Greer, but not with the conservative orthodoxy, like Judge Greer, are blasted for being ‘activist’.

joe | April 26, 2005, 11:50am | #

Nice use of "groupthink" there. When overwhelming majorities of a minority group are hostile towards the Republican Party (as they almost all are) and its beliefs, it isn't because members of a minority group understand their interests and who will fight for them, because they just aren't smart and individualist enough.

Democrats don't need to perpetuate a "myth" that black people are overwhelmingly opposed to right wing politics, because that isn't a myth. Now the Republicand, THEY need to play funny with Supreme Court nominees to create a false sense of parity among minorities' party ID - that's how you end up with the President of the United States declaring that Clarence Thomas is the most qualified person in America to be nominated to the Supreme Court. I don't see any reason why the Democratic Party needs to play "see no evil, hear on evil" towards Bush's judicial racial politics.

Shelby | April 26, 2005, 11:59am | #

I realize this is kind of off-point, but ... [i]Nietzsche[/i]? I haven't read his comprehensive works, but what I have studied suggests he'd oppose the notion of male dominance as such, not endorse it. What did I miss?

Ben | April 26, 2005, 12:08pm | #

Joe,

The many black conservatives who have been called "Uncle Toms" by blacks who insist on black political homogenization would disagree with you. The Dems want only black Dems out there as "black leaders."

Most people don't like politics and don't pay much attention to it. Having a GOP president appointing blacks to important positions makes it more difficult for the Dems to play the race card and gives black conservatives some very public champions. Dems don't want that. C'mon -- this is not rocket science.

Prof. Rick Duncan | April 26, 2005, 12:09pm | #

It doesn't really matter whether it is targeted religious bias or merely disparate impact. If the Senate Democrats have a litmus test for judges that says "no one with deep, personal, pro-life beliefs is eligible for the judiciary," it is in fact a test that eliminates faithful Catholics and members of certain Protestant faiths from consideration. Whatever the motivation of the Democratic Senators may be, excellent candidates for the judiciary are being excluded because they believe in a certain interpretation of the Word of God. It may not be a religious test in the strict sense, but these good men and women are flunking the test because of their religious beliefs.

Inspector Callahan | April 26, 2005, 12:09pm | #

Really? Is that how you describe the 190 judges who have been confirmed? All morally squishy pro-choicers?

OK, let's be honest here. The dems have a strategy of allowing the lower court judges to go through unfettered, so that when they block the higher court judges, the percentage of the total confirmed is still high. So spouting the percentage (or the total judges confirmed) says volumes about the effectiveness of their campaign, considering that libertarians and conservatives seem to make up the majority of the readers of this site.

Name me another administration - EVER in this country's history - where such a large amount of Appeals Court judges were held up, without a vote, by the MINORITY party. Answer - there never was.

So why don't we discuss the issue at hand, which is why the minority gets to hold up all high level judges because of said judges' beliefs?

TV (Harry)

The Wine Commonsewer | April 26, 2005, 12:30pm | #

Convoluted arguments to demonstrate that religious bigotry really isn't religious bigotry make us look like fools.

And Joe, the Dems will only stop wingnut candidates whose philosophy they disagree with.

God dam I hate having to defend those people.

Cathy Young | April 26, 2005, 12:31pm | #

In response to Shelby's query:

Nietzsche on women

The Editors, American Federalist Journal | April 26, 2005, 12:37pm | #

One point that must be considered - whatever the Democrat Senators' personal views about religion, they are heavily influenced by radical secularist outside lobbying groups, such as People for the American Way, Americans United for the Separation of Church and State, the ACLU, etc., that are anti-religion, especially traditional Judeo-Christian religion.

http://www.federalistjournal.com/fedblog/?p=60

joe | April 26, 2005, 12:37pm | #

"The many black conservatives who have been called "Uncle Toms" by blacks who insist on black political homogenization would disagree with you."

I'm afraid we're using different definitions of the term "many." In my usage, "many" refers to "a considerable number," rather than "a tiny fraction." The Republican candidate for President hasn't gotten more than 10% of black votes in the past four election cycles.

But of course it's not rocket science to be aware that Republicans are desperate to create the impression of significant black support. Look at the bottom of the barrel figures they're willing to give important offices to, like Clarence Thomas or JC Watts.

I'm not disagreeing with your position that the Republicans want to appear to have black support, so much as I'm mocking you for affiliating with a party that will stoop to such lows in order to create a dishonest impression in the name of racial politics, while paying lip service to opposition to racial politics.

thoreau | April 26, 2005, 12:55pm | #

Would we even be having this debate right now if abortion weren't a subject for the federal courts?

I'm telling you, the only way to do this is create a 4th branch of government devoted exclusively to abortion. Hold elections for the "Obstetric Branch" in odd-numbered years so they don't get in the way of the other elections.

It's the only way to make this problem go away.

Mark B. | April 26, 2005, 12:58pm | #

Granted, there has never been an Administration that had so many Appeals Court appointments held up by the minority party, but in this case, the Democrats are using exactly the same tactics the Republicans used 5 - 10 years ago. To me, it looks like the Republicans are reaping what they sowed during the Clinton Administration when they denied 20 appeals-court nominees hearings and stalled votes on others for years, using their Congressional majority status to override Executive selections.

In the first term of Bush's Administration, Senate Republicans systematically eliminated many of the tools they had used to block Clinton's nominations ("blue slip" system, anonymous floor holds, etc.), leaving the minority Democrats with only the filibuster as a weapon. The current hue and cry raised by First and others is disingenuous at best and politcally dishonest (yes, I know the term is a redundancy) at worst. There's a (very) brief synopsis on the Tactitus website:

http://www.tacitus.org/story/2005/4/5/231418/9021

Ben | April 26, 2005, 1:03pm | #

O.K., Joe. When you resort to calling such fine, accomplished individuals as Clarence Thomas and JC Watts "bottom of the barrel," then you have tipped your hand and made it clear that further discussion with you on this topic is pointless. 10% is not a "tiny fraction." The point is that there are a significant number of black conservatives out there and the Republicans would certainly like for them to have public roles so as to counter Democratic race-baiting and to offer blacks an alternative. Dems want to stop this, because even a minor erosion of their black base would be disastrous to them politically. Maybe you would see this if it weren't so evidently important to you to avoid seeing it at all costs.

Ben | April 26, 2005, 1:11pm | #

Mark,

Point taken. But in fairness, you must also admit that the Dems are hypocrites, too. Robert Byrd is squawking about how killing judicial filibusters will somehow violate the Constitution, but he proposed limits on filibusters three times when Democrats were in the majority. Nine current Senate Dems voted for a ban on all filibusters back in 1995, and in 1998 Sen. Leahy said on the Senate floor:

"I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down."

Now he supports the filibustering of judges. They're all throwing principle out the window.

joe | April 26, 2005, 1:14pm | #

Ah yes, the fine, accomplished JC Watts. snicker.

Yes, I've tipped my hand - I'm not going to pretend a dull witted jock is an admirable figure just because he's a black Republican. You got me.

After all, what else but judgement-clouding bias could possibly explain why I don't consider JC Watts to be the intellectual equal of Daniel Webster?

Eric II | April 26, 2005, 1:24pm | #

Nietzsche definitely had issues with women. It's one of the two great shortcomings to his work, the other being his scorned-lover's attitude towards post-pagan religions in general, and Christianity in particular. Both shortcomings appear to have their roots in his personal experiences.

Great column by Ms. Young, btw.

thoreau | April 26, 2005, 1:24pm | #

As I said before, the core of this issue is abortion. What's sad is just how low the stakes actually are in practice:

Say Roe vs. Wade is overturned. Obviously some states would ban or at least heavily restrict abortion. Probably not as many as the pro-choicers fear and the pro-lifers hope, but certainly some.

Now, as it stands at the moment a lot of American women already have to travel some distance to get an abortion, since the vast majority of US counties don't have abortion clinics. Presumably, if some states started banning or heavily restricting abortion, pro-choice groups would start providing free travel for women who can't afford to travel to get an abortion. No doubt states would try to restrict this, but such efforts would fail miserably, at least for adults. For minors it's another matter, but let's leave that aside for now.

The net effect? Most adult women who want an abortion would probably still be able to get one from a lawfully operated clinic (i.e. in a state that allows abortions). Not really a huge change compared to the status quo.

Now, of course, from an ardent pro-choice standpoint even a single woman being barred from exercising her right to choose is one too many. And from an ardent pro-life standpoint, even a single baby saved is worth all this political turmoil.

Since both sides believe that even a tiny gain or loss is worth a huge amount of turmoil, we're stuck with an incredibly ugly battle. I'm telling you, it's time to enact the 28th amendment and create an Obstetric Branch in our government ;)

Knemon | April 26, 2005, 1:24pm | #

"disqualifying judges who not only oppose abortion but passionately advocate its banning"

Which nominees have done this?

Knemon | April 26, 2005, 1:27pm | #

"dull witted jock"

NOW we see the reason joe holds Watts in contempt. It's not because Watts is a black Republican. It's because joe got beat up a lot in high school.

Dull witted jocks ... like Bill Bradley. Like Byron White.

joe | April 26, 2005, 1:29pm | #

Knemon,

Neither of them was dullwitted

I was a varsity athlete in High School.

Would you like to try again?

thoreau | April 26, 2005, 1:32pm | #

I was on the debate team in high school. Master Debater I was.

DS | April 26, 2005, 1:34pm | #

Knemon,

Joe knows what he's talking about. Those PhDs, Thomas Sowell and Condi Rice? Dumb. Colin Powell? Idiot.

Al Sharpton -- now THERE'S a genius!

Knemon | April 26, 2005, 1:35pm | #

Just kidding, joe. All in fun. Don't beat me up. I'm dull-witted, but I can't run fast.

Phil | April 26, 2005, 1:38pm | #

As Justice Scalia has pointed out, once judges began converting their personal beliefs into law, their personal views became a legitimate issue, and the courts were politicized.

Judges began converting their personal beliefs into law around 1789 or so. Anyone who believes otherwise is blind, foolish, or willfully ignorant.

David | April 26, 2005, 1:57pm | #

Phil,

I would guess earlier than that. Probably the first time one person sat in judgement of a dispute between two others.

joe | April 26, 2005, 2:08pm | #

Nice logical fallacy you got there, DS. I'll give a nickel for it.

Pointing out the Condoleeza Rice is smart sure does make me look stupid for calling JC Watts and Clarence Thomas underqualified.

Sharp as a hammer you are.

JackieBoy | April 26, 2005, 2:10pm | #

The Washington Post poll on the nuclear option is junk. Been destroyed by various bloggers. You know this is going the GOPs way when Dems start trying to cut deals.

Ben | April 26, 2005, 2:10pm | #

Phil,

Not so. Obviously, personal beliefs are always going to have some impact, and in certain court cases they played a bigger role than in others. Yet the standard remained in place that judges were to interpret, not make law, and most judges tried their best to adhere to it. It has only been in the last 40 years or so that liberals have adopted the philosophy that the Constitution is a "living document" that can be adapted and reinterpreted to fit current whims without the need for those pesky amendments. Purely coincidentally, the left's fondness for this philosophy came into full bloom about the time the public began rejecting the left-wing agenda at the ballot box.

Cathy Young | April 26, 2005, 2:13pm | #

Knemon:

William Pryor could certainly be seen as a "passionate advocate" of banning abortion. (Among other things, he referred to Roe v. Wade as "an abomination.") He was also very actively involved in the right-to-life movement.

That said: I actually happen to think Pryor should have been confirmed, and I happen to agree with some of his positions that were decried as particularly controversial (such as his opinion that the civil rights remedy of the Violence Against Women Act was unconstitutional -- something that the Supremes happen to agree with). If you look at anti-Pryor briefs, you'll see that while they referred to his very strong anti-abortion views they also focused very heavily on his supposedly "dangerous" federalism and his opposition to congressional involvement in a variety of areas such as disability rights. It's clear that he was attacked for his ideological views (as were quite a few Clinton nominees). But "religious bigotry" is a red herring, just as it is with Janice Rogers Brown. Funny that she "dares" the Dems to raise the issue of her faith, when no one has raised it. Again, all this looks to me like a right-wing version of P.C. Kind of like a liberal black judge whose nomination to the federal bench was being opposed on the grounds of his ultraliberal judicial philosophy -- particularly on issues related to race such as affirmative action -- saying, "I dare you to bring up my race!"

DS | April 26, 2005, 2:16pm | #

Joe,

My point, Joe, is that you seem to think having an "R" after the name automatically makes any black person a stupid GOP shill. But reading your comments, a certain axiom concerning wrestling with a pig comes to mind... and you're the one enjoying yourself.

Ben | April 26, 2005, 2:21pm | #

Cathy,

If his religious beliefs had nothing to do with it, why was Pryor grilled (by Feingold, I believe) about his choice not to expose his children to "Gay Days" at Disney World? And if the Senate Dems were truly interested in assessing his qualifications, why did they stand him up three times for telecons they set up?

All the stuff about his "judicial philosophy" strikes me more as cover than anything else.

Ben | April 26, 2005, 2:25pm | #

One more thing, Cathy:

Pryor's views on abortion are really not important given that 1) he has a history of upholding the law, not implementing his personal beliefs, and 2) he was nominated for an appeals court, not the SCOTUS. Even if he was inclined to overturn Roe, he couldn't do it fr