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]

This anti-Gor bias must end!

[Xrlq]

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]

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]

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

[oblomov81]

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]

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]

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]

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]

Cathy,

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

[Polybius]

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]

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]

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]

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]

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]

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]

....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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

"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]

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]

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]

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]

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]

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]

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]

"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]

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]

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]

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]

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]

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]

....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]

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]

"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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

"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]

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]

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]

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]

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]

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

[Ben]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

In response to Shelby's query:

Nietzsche on women

[The Editors, American Federali]

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]

"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]

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.]

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]

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]

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]

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]

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]

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]

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

Which nominees have done this?

[Knemon]

"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]

Knemon,

Neither of them was dullwitted

I was a varsity athlete in High School.

Would you like to try again?

[thoreau]

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

[DS]

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]

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

[Phil]

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]

Phil,

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

[joe]

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]

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]

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]

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]

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]

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]

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 from Atlanta. If the Dems are so concerned about what he might to on the SCOTUS, they should argue that when/if he is nominated for it.

[Mike K]

The argument seems to be including a lot of invective about Thomas. Joe must agree with Reid who said his opinions were an embarrassment. Too bad Russert didn't ask him which one.

The black conservative issue really concerns the black middle class which is growing fast. Eventually people begin to vote their economic self-interest. The "What's the Matter With Kansas?" guy thinks that makes them vote D. I don't think so. Unless, of course, they are government employees or lawyers. That's the Democratic Party.

My concerns about the WaPo poll showing the public turning on the GOP about judges is discussed here
and, as I suspected, the questions were "push" type. In courts they used to call this "Have you stopped beating your wife?" questions.

The pollsters seem to be part of the Democratic campaign and not conducting a real attempt to assess sentiment. That may make some people feel better but it could be dangerous when you are planning tactics. It's a bit like Pauline Kael not knowing anyone who voted for Nixon. He still won.

[dhex]

i nominate thoreau for supreme court, right after he finishes up the papacy.

"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?"

well, rhetorically, it has a certain flavor to a certain crowd relative to walking through harlem shrieking "ahh, negroes!!!" every three feet. except in this case it's "ahh, homos!!!"

[joe]

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

See, that's the problem, Ben. Maybe a certain Senator is using the phrase "judicial philosophy" to refer to his religion. Maybe another Senator is using the phrase to refer to his actual judicial philosophy.

When you tar all arguments about "judicial philosophy" as being code for religion, you undermine the important, legitimate work of debating a judicial nominee's judicial philosophy, and you ultimately undermine your own credibility. I watched my party do this when they asserted that every question raised about the impacts of welfare on communities was code for racism.

It's not a good path to go down. If you have a reason to suspect that a particular person or statement is using "judicial philosophy" as a code, then make that argument. But you aren't going to get anywhere by arguing that Senators shouldn't discuss the judicial philosophy of appellate court nominees just because they go to church!

[Ben]

Joe,

As I explained in my questions to Cathy and elsewhere, the behavior of the Dems toward nominees like Bill Pryor belie the claim that they are only interested in judicial philosophy. If they were truly interested in his judicial philosophy, they would be talking about his record, not his personal religious beliefs.

[Knemon]

"Again, all this looks to me like a right-wing version of P.C."

Agreed, and I don't like it.
But I also don't like the apparent new progressive line - conservative Catholics and Protestants are "outside the mainstream."

That's what, 40% of the country's population?

"Outside the mainstream" is whackos like Fred Phelps on the right, and Medea Benjamin on the left. Both Pryor and Ginsburg are within the mainstream.

As for "Gay Day" - if Pryor doesn't want his young children to see a gay pride parade (part of the scheduled festivities), well, 75+% of the country's parents would probably feel the same way(statistics pulled from MyAss.com)

Has Pryor followed the law, even when it conflicts with these "out of the mainstream" "deeply held" "Papist" "clerical-fascist" "doubleplusungood" beliefs of his? If yes, confirm him. If not, don't.

[thoreau]

While I appreciate dhex's nomination to Supreme Court, I fear that the Judiciary Committee will do an ixnay on the atcholicCay 🙂

Some day I will start my own libertarian experiment: I will start an island nation that is free of oppressive laws and allows unlimited private experimentation with stem cells. I will call it "The Island of Doctor Thoreau."

[David Murray]

Cathy:

To back up a bit, I haven't heard anywhere that Governor Schwarzenegger is ANY kind of churchgoer, so he can't represent "pro-choice" religious people, unless you know something I don't. There are now and have always been pro-choice Republicans, of course.

And yes, excluding anyone from office based on the teachings of his or her church precisely constitutes anti-religious descimination as defined by the Constitution.

[thoreau]

103 posts in and nobody (myself included) has observed that a religious person might be convinced that abortion is wrong, but also be convinced that the law isn't the right avenue for righting that wrong. This is a little different from "I oppose it but I respect other people's right to do it." It's more like "I oppose it, but I think that charity for women in tight situations and ministry about the value of life are the proper way to prevent abortions."

Not every religious believer or religious institution will accept that view, but it's a perfectly plausible view for a believer to hold.

[Knemon]

thoreau - good point. My wife holds that view, which drives fanatics on both sides crazy - she doesn't see abortion as some wonderful liberating act of self-actualization, but she also doesn't think locking up doctors, let alone their patients, is the way to go ...

clowns to the left of us, jokers to the right ...

[Dilan Esper]

One Bainbridge point that hasn't been looked at enough in all this discussion is his "disparate impact" argument. The fundamental flaw of it, it seems to me, is that disparate impact is not a per se violation of civil rights laws, but is rather something that, when shown, gives rise to an INFERENCE of discriminatory intent. In other words, if you are an employer or a government agency and your employment policy has a disparate impact upon blacks, you can still escape liability by showing that in fact, there is NO discriminatory intent-- that the policy serves a legitimate, non-discriminatory purpose.

Bainbridge's "disparate impact" argument is thus completely fatuous. We KNOW what the Democrats' intent is-- to keep conservatives off the bench. It has nothing to do with religion. If you think it is an illegitimate intent, then that's what the problem is-- not that it happens to affect religious conservatives disproportionately.

The point of the "disparate impact" test is to expose policies that appear race- or gender-neutral but are pretexts for discrimination, for example, the literacy test requirements and grandfather clauses that were applicable to elections in the South.

But where you KNOW that the purpose is NON-discriminatory, the "disparate impact" test has no application. Such is the case here.

[joe]

Ben, when the leading conservatives in the country are openly arguing that God's Law should trump the Constitution, it doesn't seem out of line to me to question a conservative judicial nominee on whether his religion leads him to think along those lines. Also, Bush has adopted a strategy of appointing young judges with very short paper trails. In such cases, it is impossible to make an informed judgement about the nominee's beliefs from the written record entirely.

[Knemon]

"the leading conservatives in the country are openly arguing that God's Law should trump the Constitution"

?they are?
cough*bullshit*cough

Sorry. Just something in my throat.

[Ben]

Thoreau & Knemon,

I don't understand that view of abortion at all. It's like I told a pro-abortion friend of mine one time, "If I didn't think abortion was murder, I would be all for it. The fewer unwanted children, the better." So if someone doesn't think it's murder, what's the rationale for disapproving of it?

Sorry, but I just don't see that as a "fanatical" or "joker" position.

[Knemon]

No, that's not a fanatical position. The fanatical position on the left is that abortion is a good thing per se, that it is the most important right women can have (really? more important than the vote? the right to own property?), and than any attempt to regulate it (at, say, the European level) is the entering wedge of clerical fascism.

The fanatical position on the right is ... well, you know who Randall Terry is? or, remember the "Nuremberg Files" website? eric rudolph?

[Ben]

Joe,

Where in the hell did you get THAT? Every religious conservative I know believes the Constitution is the supreme law of the land, and that it should be a "dead" document, changeable only by amendment. They love and revere the Constitution, and don't want people mucking with it and adding new rights every five minutes. What are you smoking?

[thoreau]

Ben-

Well, one might think that abortion is murder but also think that it's (usually) a murder committed under incredibly difficult mitigating circumstances. That sympathy might motivate a person to prefer preventive measures (charity for pregnant women in desperate circumstances) rather than the harshness of the law.

Also, it's usually dangerous to insist that views be taken to their (supposedly) logical conclusion. That way lies dangerous extremism.

[dhex]

it should be dead until we amend it, dammit!

i want to know what everyone is smoking, and i demand a little bit from all of you, so i can get so fucking high as to be able to listen to anyone talk about politics for more than five minutes without wishing i were high.

[Knemon]

"Joe,

Where in the hell did you get THAT?"

Same place I got the gay day statistics. MyAss.com. You should check it out.

[David]

Well, there was that Justice Sunday nonsense, with Bill Frist, a leading consevative.

One of the main problems with both parties is that most action is initiated and perpetuated by extremists. It's long past time that the 80% in the middle ditched these people and hammered out an agreement.

Thoreau, on the island, can I be a panther-man?

[Ben]

Knemon,

If you define the right-wing anti-abortion fanatic as someone who bombs clinics, then I agree 100%. Terry is an embarrassing loudmouth, but otherwise harmless.

On the other hand, if you believe that abortion is murder, then it is not unreasonable to oppose it in all circumstances other than to prevent immediate, serious physical harm or death to the mother.

[Ben]

David,

I didn't see Frist's speech as being any more ridiculous or offensive than the Dems' annual pilgrimage to the NAACP.

[Knemon]

"On the other hand, if you believe that abortion is murder, then it is not unreasonable to oppose it in all circumstances other than to prevent immediate, serious physical harm or death to the mother."

True. But unreasonable does not necssarily = not extreme.

Terry is Mostly Harmless, but he got a little too close for comfort to the un-harmless types back in the early 90s. He's not a complete idiot, so he's ditched most of those connections now.

What is it about upstate NY (from whence I hail) that inspires religious ... uh ... don't want to call them whackos, but ... Mormons, Terry ... I see a pattern here ...

[Cathy Young]

Let's see if I can make any sense of the arguments being made by my critics in this thread.

Argument 1: It's bigoted to oppose the judicial nomination of a "devout Catholic" on the assumption that he or she is likely to try to restrict abortion rights, because such an assumption is based on the bigoted notion that Catholics will take their lead from the Vatican rather than follow the law.

Argument 2: Being supportive of Catholic judges or politicians who do not favor banning abortion does not absolve one of the charge of anti-Catholic bigotry, because those aren't "real" Catholics -- a real Catholic must support a ban on abortion.

Anyone see the contradiction?

Now, we could get into the argument over whether it's proper for the party that doesn't control the White House to block the President's judicial nominees on ideological grounds. We could also discuss the problems posed by the activist judiciary, and the outsized place held by abortion in the national political debate.

But none of that is the issue right now. The issue is the baffling claim (still being made by some in this thread) that it is "discriminatory" to oppose a nominee/candidate for public office because of their views of public policy issues if those positions happen to be rooted in religious faith or church teachings.

That has to be the most absurd interpretation of anti-discrimination law I have seen so far. (Well, except for the idea of "anti-feminist intellectual harassment" that academic feminists were trying to push some years ago -- a concept which would have basically allowed them to bring charges of discrimination against critics who dismiss or "devalue" feminist work. Luckily it didn't fly.)

Of course, if this principle is applied consistently it would go beyond judgeships and apply to political candidates as well. For instance, would it be "religious bigotry" for a congressional candidate to slam an opponent for his anti-abortion-rights, anti-gender-equality, anti-gay views if said opponent happened to be an evangelical or a devout Catholic?

Are you basically saying that a whole range of opinions and ideas should be protected from criticism simply because they have a religious foundation? If so, then perhaps such ideas really do not belong in the public square -- because all ideas in the public square should be equally open to challenge and debate.

[David]

Ben,

I don't defend the Democrats. I most like to point out that Republicans aren't that different, if at all.

I find little of use in the policies of either party. Those portions that I do agree with are usually tied to something I don't.

[Serafina]

From the Constitution Restoration Act:

"Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgment of God as the sovereign source of law, liberty, or government."

Seems like the religious right wants to put their God ahead of any other filter for interpreting the constitution. If a government official says she's doing what God said to do, well, who's the Court to say otherwise?

[Dan]

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.

If an active desire to make abortion illegal disqualifies a person from being a judge, does an active desire to make drugs legal also disqualify them? What about an active desire to abolish the death penalty? Is a judge who hears tax cases unfit to serve if he thinks taxes should be higher (or lower) than they currently are?

You're assuming that all judges immediately write their own desires into the law. I don't think that's a fair assumption. A person can believe that abortion is murder and still acknowledge that the law says that it isn't. They can work to change that law while still acknowledging that it hasn't been changed yet.

[Knemon]

"The issue is the baffling claim (still being made by some in this thread) that it is "discriminatory" to oppose a nominee/candidate for public office because of their views of public policy issues if those positions happen to be rooted in religious faith or church teachings."

I won't make that claim. I won't even use the word "discriminatory" (although in the etymological sense, it clearly applies) - I'll just say that if Pryor, who hasn't in previous judgeships issued any Papist fatwas that I'm aware of, is "radical" because he thinks Roe v. Wade was argued/decided incorrectly (an opinion which many quite liberal law prof.s share, because - let's face it - while it might make us feel warm and happy and progressive/libertarian fuzzy, it wasn't good law),

if this judge gets Borked because he's an orthodox Catholic in private life,

then that makes me less than gruntled.

Senate Democrats can go ahead and Bork him till the cows come home, but they shouldn't pretend that they're not doing what they patently are.

[J Mann]

If I may:

Argument 1: It's bigoted to oppose the judicial nomination of a "devout Catholic" on the assumption that he or she is likely to try to restrict abortion rights, because such an assumption is based on the bigoted notion that Catholics will take their lead from the Vatican rather than follow the law.

Cathy, I don't think "bigoted" is helpful, although I'm sure plenty of religious are using the term.

I think it's unquestionably discrimination to assume that a Catholic won't enforce the law accurately based on his or her private religious beliefs. Certainly, there are a number of religious people who do enforce laws that they personally oppose. The question is whether it's acceptable discrimination or unacceptable discrimination.

My answer would be that it depends on the case. John Kerry is a Catholic who claims that he would protect abortion notwithstanding his personal objection to the practice, and so is Judge Prior, and so was John Ashcroft (except he was Pentacostal, not Catholic).

Where you end up, most of the time, is deciding that Prior and Ashcroft are a little bit too religious to take them at their word, but Kerry isn't that religious, so it's ok. After all, Kerry's a longtime friend of abortion, but Ashcroft, despite faithfully defending abortion as state attorney general and governor, has been seen praying, and was annointed with Crisco!

So again, if you're saying that you believe Kerry but not Prior because Prior's a little bit too Catholic and Kerry's not, it strikes me as anti-religious discrimination. The only question is whether it's acceptible discrimination or not.

[Steve]

joe,

I may be late on this, but I would love to hear some evidence for your assertion that Clarence Thomas is a "bottom of the barrel" judge. I've found his opinions to be some of the best I've read. Even when I disagree -- Lawrence, for example -- I respect Thomas's reasoning. Scalia, not so much, although he's obviously very intelligent.

[Cathy Young]

Responding David Murray:

Schwarzenegger is, in fact, a churchgoing Catholic.

And yes, excluding anyone from office based on the teachings of his or her church precisely constitutes anti-religious descimination as defined by the Constitution.

Based on the teachings of his or her church -- yes.

Based on his or her views on public policy issues such as abortion -- no.

As theoreau and knemon point out, there are plenty of religious people who do believe (in accordance with the teachings of their church) that abortion is wrong but do not believe that legal prohibiton is the way to deal with it.

Regarding the questioning of Pryor about his rescheduling a family vacation at Disneyland to avoid "Gay Day": Feingold's argument was that this was relevant because of the implied perception that he couldn't be fair to gay candidates. Personally, I think that was a silly cheap shot. Given some of the sexually flaunting behavior that reportedly goes on at those events, I would say that a lot of parents who aren't particularly religious would stay away as well. (And I'd say the same thing if it was heterosexual exhibitionism.) But that was one question in a lengthy hearing.

[kevrob]

Cathy still hasn't dealt with the question of nominees presumed to be zealously pro-life due to their presumed religious beliefs absent any public pronouncements on abortion (example given - Miguel Estrada).

As for joe's disparagement of certain republican African-Americans as Not Too Bright, why should we take him seriously? He's a pinko from the state that returns that scholar, Edward (I'll get someone else to sit my Spanish final) Kennedy to the Senate.

Kevin

[Ben]

Cathy,

No, there's no contradiction at all. Kennedy, Kerry, Levin, et. al. all say they are Catholic. The Dems don't care if someone calls himself Catholic -- in fact, it's a nice little resume filler -- as long as the person doesn't actually believe most of the stuff his church teaches on moral issues. Neutered Catholics are fine.

Now you might argue that, see, it's the positions, not the religion. But anyone can claim to be of a particular faith if he wants. An 80-year-old Catholic who hasn't been to mass since he was 15 can still say he's Catholic. If the Dems' position is that they don't mind Christians as long as they don't espouse Christian moral beliefs, that's not a very defensible position. That's like a segregationist saying he doesn't mind blacks as long as they don't look black.

As for political candidates, all their positions are fair game. If I choose not to vote for someone because of his race or religion, that's legal. And what the Dems are doing does not rise to a violation of the "religion test" because, as you note, some Christians are acceptable to them.

What conservatives are doing is simply pointing out what the Dems are doing, which is taking the position that any Christian from a conservative denomination who actually believes what his church teaches on moral values is unfit for the courts. And the Dems back this up every day by railing against the "undue influence" of religion in public life. But for some reason, the Dems don't want to admit what they are doing. I wonder why?

[Knemon]

"But for some reason, the Dems don't want to admit what they are doing. I wonder why?"

Probably for the same reason the left has to come up with a new name for itself every decade or so.

Communi - wait, socia - okay, social democ - uh, liberali - progressiv - um, social justice?

i.e., honesty wouldn't get them anywhere. That's why I (marginally) favor Republicans in the binary choice.

As The Great P.J. put it, Democrats are the party that promise to diaper your kid and mow your lawn. Republicans tell you government doesn't work, then they get elected and prove it.

[M. Simon]

I know it is bad philosophy. Bad as a test for laws.

But hell the other side uses it and if I do I can win my point.

===================

This not a fundamentally moral position.

To then go on to harp about morality seems to me to be a tad mixed up.

We end up not with the rule of law but the rule of "right". "I'm right and you are wrong. And I have the power and you don't."

==================

As some one else has pointed out. Power has gone to these folk's head.

Hillary in '08.

[Cathy Young]

Dan:

If an active desire to make abortion illegal disqualifies a person from being a judge, does an active desire to make drugs legal also disqualify them? What about an active desire to abolish the death penalty? Is a judge who hears tax cases unfit to serve if he thinks taxes should be higher (or lower) than they currently are?

Are you suggesting that a federal judicial nominee who had campaigned for drug legalization in the past wouldn't get clobbered over that issue -- by both Republicans and Democrats, for once -- no matter how much she swore up and down that she would uphold the law?

Are you suggesting that the Republicans wouldn't go after a judicial nominee who had actively campaigned against the death penalty?

If you believe that, you obviously live in a rather different reality than I.

Knemon:

I'll just say that if Pryor, who hasn't in previous judgeships issued any Papist fatwas that I'm aware of, is "radical" because he thinks Roe v. Wade was argued/decided incorrectly (an opinion which many quite liberal law prof.s share, because - let's face it - while it might make us feel warm and happy and progressive/libertarian fuzzy, it wasn't good law),

if this judge gets Borked because he's an orthodox Catholic in private life,

then that makes me less than gruntled.

Please notice how you're conflating orthodox Catholicism in private life with a public policy position on Roe v. Wade. (And yeah, I agree, it was an unsound decision from a legal/constitutional point of view.)

JMann, regarding your Kerry/Pryor comparison: The issue is not simply that Pryor is "more Catholic" than Kerry in his private life. It's that, in his public life, he had been an active champion of restricting abortion rights (for instance, advocating for legislation that would have allowed a judge to appoint a guardian ad litem for the fetus of any underage girl seeking an abortion -- which, I should note, is quite different from upholding parental notification).

I'll reiterate again that I don't think Pryor's public policy decisions, for the most part, were particularly radical. Most of his attempts to restrict abortion focused on "partial-birth abortion," and I agree that the pro-abortion-rights movement has been much too dogmatic on that issue. (Though I think it's the same "camel's nose in the tent" syndrome that afflicts the National Rifle Association with regard to gun regulations.) But that's not about religion. It's about abortion.

[Mike]

If one is a Roman Catholic with orthodox views on abortion, should you be banned from any federal judgeship? Surely not. But that has happened.

[M. Simon]

Knemon,

Surprisingly the Courts have ruled "In God We Trust" can stay on the money because it is meaningless. Like saying "bless you" after a sneeze. A left over superstition.

A rather cute way of dealing with the issue don't you think?

So if you think "In God We Trust" on the money actually means something the court has branded you as superstitious. Not rational.

[Knemon]

"(And yeah, I agree, it was an unsound decision from a legal/constitutional point of view.)"

From what other point of view should one examine SC decisions?

So Pryor's not out of the mainstream.
So he's not a dangerous theocratic radical.
So, at minimum, this *particular* act of Borking is not okay?

So we have nothing to argue about.

[Mo]

Ben

Every religious conservative I know believes the Constitution is the supreme law of the land, and that it should be a "dead" document, changeable only by amendment

Really? So all the religious conservatives you know opposed Congress overstepping its delegated powers and intervening in the Schaivo case?

[David]

With the dollar value being what it is, trust in a deity might be all that's left.

[M. Simon]

Cathy Young,

So far as I know the courts have said that states can ban partial birth abortions in all cases except when medically indicated. i.e. to save the life or physical health of the mother.

The reason these bans by law have not held up is that some folks want to ban them not just as a method of birth control but even as a life saving measure. i.e. in line with Catholic doctrine.

In other words it is a fund raising dispute.

[Knemon]

M. Simon - yeah, I was pretty perplexed by that legal fancy-dancing.
The same argument was applied to "under god" in the Pledge, right?

It's a neat Catch-22 ...
"In God We Trust" presumably meant *something* when first put on coins ... like the declaration's "endowed by their Creator" ...

... but now, it's just something nice-sounding, like "Happy holidays?"

[Knemon]

"some folks want to ban them not just as a method of birth control but even as a life saving measure. i.e. in line with Catholic doctrine."

Is that really Catholic doctrine? I'd like to see that substantiated.

If so ... reason 1,001 why I'm not a Catholic.

[Rimfax]

What about if it's based on the Gord novels?

[kevrob]

The reason "health of the mother" exceptions are fought by pro-lifers is because the PLers claim that pro-choicers stretch the meaning of "health" too far: asserting that if a woman didn't have an abortion she would suffer from stress, frex. Exceptions limited to actual life-threatening situatons are OK by most of the religious types, even if they would see it as morally superior to martyr oneself for the sake of the fetus/unborn child.

Kevin

[Ben]

Mo: Whether you agree with the Schiavo case or not, Article III of the Constitution gives Congress the power to specify the reach of the federal court system, and that's what they did. But even if you maintain that Congress overreached, it was a legislative action performed by politically accountable elected representatives, not by unaccountable judges. Big difference.

M. Simon: There is NEVER a case where partial-birth abortion is required to save the life of the mother. It is a myth. If a woman's life is in danger, a C-section can be used to deliver the child rather than puncturing and crushing its skull. C-sections are actually safer and faster than taking the time to turn a full-term baby around in the womb, have the mother push out the entire body, and then puncture and crush the skull, risking severe cuts to the mother from the broken edges of the skull. The whole "mother's life and health exception" is just a ruse to allow the practice to continue unabated.

[M. Simon]

kevrob,

If what you say is true then all legislatures have to do is write the law accordingly. Why isn't that being done?

The end of fund raising.

[Cathy Young]

I'm going to have to cut this short (a deadline beckons), but...

Estrada: haven't followed that debate very closely, the only thing I know is that the Republicans made an issue of his ethnicity. Was his Catholicism an issue? Links, please?

Knemon, re the "borking" of Pryor -- I think we're aguing about whether it was based on his religious views. From reading the anti-Pryor briefs, I think it was based largely on his strict federalist views. Which is not ok either, but doesn't inflame the passions quite so much as a cry of "religious bigotry," does it?

Ben:

Now you might argue that, see, it's the positions, not the religion. But anyone can claim to be of a particular faith if he wants. An 80-year-old Catholic who hasn't been to mass since he was 15 can still say he's Catholic.

So Rudy Giuliani and Arnold Schwarzenegger aren't real Catholics either, eh? (Be careful with words like "neutered" when talking about the Governator... 😉 )

If the Dems' position is that they don't mind Christians as long as they don't espouse Christian moral beliefs, that's not a very defensible position.

How about "as long as they don't believe that Christian moral beliefs ought to be enshrined in law"? (Or, to be more specific, the moral beliefs of some Christian denominations.) Or more precisely: as long as they don't advocate public policy positions opposed by the Democrats, even if those positions reflect "Christian moral beliefs."

That's like a segregationist saying he doesn't mind blacks as long as they don't look black.

More right-wing PC. Reminds me of the arguments of liberals who would call the Republicans racist for opposing the nomination of pro-affirmative action, anti-death-penalty black judges. Point out that the Republicans do support conservative black judges, and you'll get the response, "Oh, the Republicans don't mind blacks as long as they don't act black."

As for political candidates, all their positions are fair game. If I choose not to vote for someone because of his race or religion, that's legal.

You're sidestepping the issue. It's legal not to vote for someone because of their race or religion (though not socially acceptable to admit to doing so). However, race-baiting in a political campaign is widely regarded as unacceptable, and a candidate perceived as making bigoted attacks on her opponent would pay a serious political price.

Are you saying that slamming your opponent for her anti-abortion views qualifies as "religious bigotry" if those views happen to be rooted in religion?

A couple more quick points.

For the right, this is not not about judges' personal religious beliefs: it's about judges being willing to impose those beliefs from the bench. For proof, look no further than the savaging of Judge Greer, the devout conservative Christian who committed the crime of upholding the law in the Terri Schiavo case.

Finally: Juan Non-Volokh makes a persuasive argument, over on The Volokh Conspiracy, that the blocking of Bush judicial nominees is not only not about religion, it's not even about ideology. It's actually about "payback for Republican obstruction of Clinton nominees."

But the conservatives can't very well admit that, can they?

[Sen. Carl Talbot (R-Gor)]

Who is this Earth female, Cathy Young, who dares speak so boldly as to spark dissension among men? Clearly, she has not felt the pride and true freedom of being owned by a male with a firm, strong hand that brooks no defiance. This shall be remedied at once. Let the auction begin!

[M. Simon]

Ben,

If that is in fact true why hasn't the medical profession itself quit doing them on the grounds of malpractice?

When this issue first became hot a few years back I saw a pro-life (she claimed) nurse on TV say the proceedure saved her life.

What you say may be true in most cases but if it was true in all cases then there would be no issue. Doctors wouldn't do it for fear of lawsuits.

[Stevo Darkly]

Rimfax: What about if it's based on the Gord novels?

You're thinking of the GERD novels -- about a planet where men dominate women, but because of the stress suffer from gastro-esophagal reflux disease.

[Ben]

M. Simon,

I think you sort of inadvertantly strengthened my point. In a true emergency, I doubt doctors do it for exactly the reason you mentioned (lawsuits). The point is that the "emergency procedure" is a canard being thrown up by pro-abortion extremists. The reason they want to keep this procedure is because, as I understand it, it is the only procedure that can be used in the very late stages of pregnancy that manages to kill the kid before he breathes and magically becomes a "person." And if a woman wants to kill her child the day before her due date, then by golly, she should be able to do it.

[Al Gor of Gor]

Two gold pieces for the feisty libertarian Earth woman!

[Dan]

Are you suggesting that a federal judicial nominee who had campaigned for drug legalization in the past wouldn't get clobbered over that issue -- by both Republicans and Democrats, for once -- no matter how much she swore up and down that she would uphold the law?

Are you asking if I think he would get clobbered, or if I think it is fair, right, and reasonable to clobber him? Because the answer to the first question is "hell yes" and the answer to the second is "HELL no". It is denying a person an appointment because they are ideologically impure.

The thing is, government officeholders' ideology isn't protected by the Constitution. Their religion is. "Clobbering" a person for being qualified, honest, but ideologically impure is merely contemptable. Clobbering a person for being qualified, honest, and religiously impure is both contemptable and unconstitutional.

[Mayor of Bangor, Maine]

Three gold pieces!

[Ben]

Cathy,
"So Rudy Giuliani and Arnold Schwarzenegger aren't real Catholics either, eh?"
If by "real" you mean "devout" as the church defines it, no they are not.

"How about "as long as they don't believe that Christian moral beliefs ought to be enshrined in law"? (Or, to be more specific, the moral beliefs of some Christian denominations.) Or more precisely: as long as they don't advocate public policy positions opposed by the Democrats, even if those positions reflect "Christian moral beliefs."
How about this: Democrats do not want anyone on the bench who advocates the moral positions of conservative Christian denominations because they will thwart the activism of the liberal judges. Of course, this has the effect of excluding any devout Christian who holds traditional moral beliefs from the bench. Which is what the conservatives are complaining about and the Democrats are denying.

"Reminds me of the arguments of liberals who would call the Republicans racist for opposing the nomination of pro-affirmative action, anti-death-penalty black judges. Point out that the Republicans do support conservative black judges, and you'll get the response, "Oh, the Republicans don't mind blacks as long as they don't act black."
Sorry, Cathy, but that's a lazy argument. I think we can all agree that, unlike a religious affiliation, race does not come with a belief system attached. A person who tries to associate certain beliefs with a particular race is a racist. But particular beliefs are most certainly part of being associated with a particular religion.

"Are you saying that slamming your opponent for her anti-abortion views qualifies as "religious bigotry" if those views happen to be rooted in religion?"
Nope. Again, I think you are missing the point. If a voter says he will not vote for anyone who is anti-abortion, that pretty much rules out voting for a devout Catholic or other conservative Christian candidate. And if you ask him, he will probably admit this. The Senate Dems are doing the same thing, but refuse to admit that their position pretty much only affects traditional Christians who adhere to their church's teachings.

"For the right, this is not about judges' personal religious beliefs: it's about judges being willing to impose those beliefs from the bench. For proof, look no further than the savaging of Judge Greer, the devout conservative Christian who committed the crime of upholding the law in the Terri Schiavo case."
Right and wrong. True, the right wants judges who are not activists. As for Judge Greer, he is being savaged because many people do not believe he upheld the law in any shape, form, or fashion. He is seen as a lazy bureaucrat who just let the practically former husband literally get away with murder.

"Finally: Juan Non-Volokh makes a persuasive argument, over on The Volokh Conspiracy, that the blocking of Bush judicial nominees is not only not about religion, it's not even about ideology. It's actually about "payback for Republican obstruction of Clinton nominees." But the conservatives can't very well admit that, can they?"
Yes and no. Conservatives don't want wild-eyed judicial activists on the bench inventing new rights every five minutes, so they blocked some of Clinton's nominees. Democrats figure they won't be winning any more elections for a while, so they are more intent than ever to keep the courts as liberal as possible since it's the only way they can move their agenda forward. Who needs voters if the courts will just impose what you want?

[dhex]

"An 80-year-old Catholic who hasn't been to mass since he was 15 can still say he's Catholic. "

you may be interested to know this, ben, but unless he's done something officially naughty, he's still a catholic in the eyes of the church.

i didn't even get confirmed but had no problem getting signed up for pre cana (which was a hoot) as well as the pre-marriage interview with the priest (who is a big james joyce fan) and all that fun stuff.

[Cathy Young]

Ben and Dan:

So what you're saying, loud and clear, is that opposition to particular political beliefs is discriminatory (and unconstitutional, if used as a test for public office) if those political beliefs are associated with a religious faith.

In other words: You want special treatment for faith-based political beliefs.

If that's how you want to construe the constitutional ban on a religious test for public office, then I say let's construe the constitutional prohibition on "establishment of religion" to ban all political advocacy based on religious faith. Because if faith-based ideas cannot compete equally in the public square, they shouldn't be there.

[dhex]

"Because if faith-based ideas cannot compete equally in the public square, they shouldn't be there."

shit, if we keep it fair, the porn will win every time. you know better than that.

[Jason Sonenshein]

...I agree that the pro-abortion-rights movement has been much too dogmatic on that issue[partial birth abortion]. (Though I think it's the same "camel's nose in the tent" syndrome that afflicts the National Rifle Association with regard to gun regulations.) But that's not about religion. It's about abortion.

--Comment by: Cathy Young at April 26, 2005 04:47 PM

I think the fears of both the pro-choice and pro-gun forces about the camel's nose under the tent are well founded. Look at the example of MADD. In the early- to mid- 1980's MADD succeeded in getting courts and legislatures to treat drunk driving as the serious public-safety problem that it is. Rather than declaring victory and going home, the MADD crowd got Congress to blackmail the states into raising the drinking age to 21 and lowering the DUI standard to .08, but this still isn't enough for MADD. MADD is now pushing for even lower blood alcohol standards. MADD has a staff to pay and funds to raise, so it keeps fighting for more and more government restrictions and probably won't stop until it succeeds in implementing a new era of prohibition.

Like MADD, the anti-choicers knows that it can't enact its entire agenda at once, so it is starting with something about which most people agree, the "partial birth" abortion ban. But they probably won't stop until every woman who suffers a miscarriage is the target of a homicide investigation, and foreign travel by pregnant women is restricted for fear that they will seek abortions overseas.

Likewise, gun rights activists are right to fear that their opponents are seeking to implement a total firearms ban incrementally.

I'm not sure that a ban on so-called "partial birth" abortion ban would be such a grave injustice. Nor do I think it would be such a bad idea to close the so-called "gun show loophole," but I contribute to groups that oppose these small, seemingly reasonable restrictions because I fear that they might lead to greater, less reasonable restrictions down the road.

[Jason Sonenshein]

The first sentence of the third paragraph of my last post should have read:

"Like MADD, the anti-choicers know that they can't enact their entire agenda at once, so they are starting with something about which most people agree, the "partial birth" abortion ban."

[Tom Grey - Liberty Dad]

Cathy, you're a fine writer. But abortion is the initiation of killing force against an innocent human fetus, one with different DNA than the mother, and therefore NOT "part of her body".

Judges have said that, based on unwritten but implied rights of privacy in the Constitution, women can ask doctors (almost all male) to abort any unwanted fetus. Had judges NOT accepted it, abortion would be explicitly legal in some states, prolly not legal in others.

In Terri Schiavo's case, Judge Greer could have ruled that Terri would NOT choose to be starved to death, in her condition; or that there was not clear and convincing evidence that she would -- which is what the 1998 Guardian ad Litem (Mr. Pease) wrote. The judged decided on death. Judges have that power of decision.

You are prolly right that it is not exactly religious bigotry of the Dems, despite the ACLU anti-God, anti-prayer, anti-10 commandments, etc. It is the huge, long, never ending culture war. One side is aptly named by Pope John Paul II as the Culture of Life. On the other side are secular humanists, secular fundamentalists, egoist hedonists, secular hedonists.

Right now I call them, you, "secular hedonists." And they've become parents of some 44 million fewer kids than they would have without legal abortion, so demographics will be making them obsolete as a democratic force, unless they can convince/brainwash more kids that their parents are more wrong than the PC teachers.

I actually like this Roe effect, as well as less crime, less teenage pregnancy, etc. But the good effects aren't worth it.

The Dem party has become a church of pro-abortion, and excommunicates any who are heretics. Many pro-life folks want to do that to the Reps, and are likely to succeed over time, but haven't yet.

Kerry should be denied communion, as should all pro-abortion politicians. Pope Benedict XVI has written that it is not a sin to vote for a pro-abortion politician for other reasons, but to vote for him because he IS pro-abortion would be a sin. Kerry should honestly choose his church: Roman Catholic (Sunday morning) or Dem Party (all the rest of the time).

[Mo]

But even if you maintain that Congress overreached, it was a legislative action performed by politically accountable elected representatives, not by unaccountable judges. Big difference.

By that logic you would support an unconstitutional law that restricted speech over judges striking down said law because Congress is politically accountable. Tell me again what the turnover rate in Congress is? Or wait, conservatives will just bitch, like they did after CFR, when they passed a law that unconstitutionally restricted speech, a Republican president signed said law and the unaccountable judges punted.

Right and wrong. True, the right wants judges who are not activists. As for Judge Greer, he is being savaged because many people do not believe he upheld the law in any shape, form, or fashion. He is seen as a lazy bureaucrat who just let the practically former husband literally get away with murder.
Boy, him and 15 other judges are sure lazy bureaucrats. I?ll trust 15 judges appointed by different governors (heck they could be elected, I don?t know Florida law) over a bunch of Congressmen whose only knowledge is a doctored tape of a vegetative patient staring in the general direction of a balloon.

[Ken Shultz]

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

I don't care if they self-identify as "conservatives", they aren't. They come from a Progressive tradition that includes Prohibitionists and Suffragettes.

[Dogzilla]

I have little empathy for "anti-christian" bias. An open athiest wouldn't even be considered a serious political candidate in most states/districts.

[Dan]

So what you're saying, loud and clear, is that opposition to particular political beliefs is discriminatory (and unconstitutional, if used as a test for public office) if those political beliefs are associated with a religious faith.

Religious beliefs are protected by the Constitution. You shouldn't oppose a judicial nominee because of their political beliefs either, unless you think they will dishonestly write those beliefs into the law, but political beliefs are not afforded the protection that religious ones are. You cannot have a religious test for public office; you may have a political test.

Let me ask you this: I am an atheist. Can a Senator ask me "Dan, do you think that this country should be considered 'one nation under God' and then refuse to confirm me when I say 'no'?". If not, why not -- that's a hot political issue these days, after all, so the Senator can always claim he's denying me for purely political reasons. But if yes, then exactly what good is the "no religious test" clause? What is it for, if not protecting people from being denied office because of their religious beliefs?

Your opinion seems to be that the "no religious test" clause makes it fine to deny office to actually devout people, and restricts the government only from denying office to people who claim membership in a religion but ignore its teachings. E.g., I can't deny office to Jews -- just to people who refuse to eat pork or work on Saturdays. That doesn't sound plausible to me.

[Dan]

Cathy, you're a fine writer. But abortion is the initiation of killing force against an innocent human fetus, one with different DNA than the mother, and therefore NOT "part of her body".

If you want to get all technical about it, a fetus isn't "part of the mother's body" -- it is "a parasitic organism". It lives off its host, leeching nutrients and worsening the host's health, to further its own growth.

Even if you grant that the fetus is "innocent", it doesn't automatically follow that it has a right to live in its mother's body. You might be in danger of dying if you aren't immediately hooked to a life-support system, but it does not follow that you have the right to force me to be that life-support system. Nor is it reasonable to argue that the mother is responsible for the fetus' needy condition -- if I take a healthy person and make them unhealthy, I am clearly responsible for that damage. But if I take a nonexistant person and make them existant-but-unhealthy, how can I have a debt to them?

The issue isn't as cut and dried as you think, even if we accept as a given that fetuses are people.

[David]

In Terri Schiavo's case, Judge Greer could have ruled that Terri would NOT choose to be starved to death, in her condition; or that there was not clear and convincing evidence that she would -- which is what the 1998 Guardian ad Litem (Mr. Pease) wrote. The judged decided on death. Judges have that power of decision.

So you believe that he should have ignored the law, and used his Baptist values instead.

You are prolly right that it is not exactly religious bigotry of the Dems, despite the ACLU anti-God, anti-prayer, anti-10 commandments, etc.

The ACLU gets someones unfairly tarred as anti-God. Many of the cases that people cite are brought by members of one faith against being coerced into the acts of another faith. They are just not the correctfaith so it's played as anti God. I think that most people wouldn't have a problem with the ten commandments in public places as part of a display celebrating previous law systems. They are rarely used that way, instead being put there so they can be forcibly removed and a show made of the placer's piety.

[Jason Sonenshein]

Your opinion seems to be that the "no religious test" clause makes it fine to deny office to actually devout people, and restricts the government only from denying office to people who claim membership in a religion but ignore its teachings. E.g., I can't deny office to Jews -- just to people who refuse to eat pork or work on Saturdays. That doesn't sound plausible to me.

--Comment by: Dan at April 26, 2005 08:00 PM

Not quite. A more apt example would be to deny office to someone who would uphold laws against eating pork or working on Saturdays. Would such a denial constitute a religious test?

[Knemon]

Again, to stay within the realm of things which are actually happening, Pryor has repeatedly upheld laws he surely has personal beef with.

Whatever hypotheticals we can spin (what if you nominated a Thugee? what if you nominated Alistair Crowley?), the Borking of Pryor looks a lot like anti-Papism, even to this non-Catholic.

[Frank Gor-shin]

Five! Five gold pieces for the Earth woman!

[Carpet Humper of Gor]

Seven ... uh! ... gold ... uh! ... pieces!

[I'll Gor-nish Your Wages]

Ten pieces of gold for the Earth woman! I must have her! I shall see her dance prettily in the furs for me this very night!

[Dan]

Not quite. A more apt example would be to deny office to someone who would uphold laws against eating pork or working on Saturdays.

So it would be legitimate to deny any devout Jew a position in, say, the Department of Agriculture, which regulates pork products. Can't allow that dangerous anti-pork sentiment near the law, right?

[Jason Sonenshein]

So it would be legitimate to deny any devout Jew a position in, say, the Department of Agriculture, which regulates pork products. Can't allow that dangerous anti-pork sentiment near the law, right?

--Comment by: Dan at April 26, 2005 09:56 PM

No, of course not. I know of no Jews, no matter how devout, who want to make it illegal for me to eat pork.

However, I would oppose the election or appointment of any public official who would use his or her office to deny me the right to eat pork, whether said official's anti-pork views are religiously or secularly based.

Similarly, I generally oppose the election or appointment of public officials who would use their offices to deny women the right to choose abortion, whether said officials' anti-abortion views are religiously or secularly based. I'm not a single-issue voter; I have voted for anti-choice candidates on occasion, but abortion and other reproductive rights are major factors in my voting decisions.

[Knemon]

*sigh*

... eleven gold pieces ...

[Cathy Young]

Dan:

Religious beliefs are protected by the Constitution. You shouldn't oppose a judicial nominee because of their political beliefs either, unless you think they will dishonestly write those beliefs into the law, but political beliefs are not afforded the protection that religious ones are. You cannot have a religious test for public office; you may have a political test.

Except that you (and some others) are interpreting the ban on "religious tests for public office" so as to mean that political beliefs rooted in religious faith cannot be a disqualification for any public office. I don't see where the Constitution says that.

Taken to its logical conclusion, your argument would mean that total pacifism cannot be a disqualification for the office of Secretary of Defense, provided that such pacifism is rooted in religious faith. Because, remember, the Constitution says nothing about "no religious tests unless relevant for the job."

A few words about the religious test.

Article VI of the Constitution of the United States says:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

The placement of the "no religious test" line, immediately after -- and in juxtaposition to -- the "oath of affirmation" part, makes it pretty clear what the, ahem, original intent was. An officeholder could not be required to take an oath affirming his allegiance to a particular religion or denomination, or even a general belief in a Deity. (Obviously what the Founders had in mind was something like the situation in England where an oath of loyalty to the Church of England was required of all officeholders.)

Some information on the debate surrounding the religious test ban at the time of the ratification of the constitution can be found in this article. Also of interest is this essay by noted jurist Oliver Ellsworth, a Constitutional Convention delegate from Connecticut and later the Chief Justice of the U.S. Supreme Court, which makes it quite clear that to the Founders, a "religious test" meant a requirement of belonging to a particular faith:

A religious test is an act to be done, or profession to be made, relating to religion (such as partaking of the sacrament according to certain rites and forms, or declaring one's belief of certain doctrines,) for the purpose of determining whether his religious opinions are such, that he is admissable to a publick office.

Of particular interest is a passage in which Ellsworth writes that while a test "requiring all persons appointed to office to declare ... their belief in the being of a God, and in the divine authority of the scriptures" would not in principle be objectionable, it would be problematic because an unprincipled infidel could easily make a false declaration of belief. Wrote Ellsworth:

If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.

In other words, the prohibition on a religious test was never meant to prohibit those who make appointments to public offices from taking into consideration the religious views of the would-be officeholder. It meant simply that there could be no litmus test either requiring officeholders to profess a particular faith, or formally exluding all who subscribe to a particular faith.

Let me ask you this: I am an atheist. Can a Senator ask me "Dan, do you think that this country should be considered 'one nation under God' and then refuse to confirm me when I say 'no'?".

If this question was couched in terms of your positoin on the Pledge of Allegiance, rather than your own personal belief or disbelief in God -- I think he can.

By the way, do you think Bush was endorsing an unconstitutional religious test for public office when he said that we need "commonsense judges who understand that our rights are derived from God"?

And here's another question. Do you think that a militant atheist who had been active in the cause of church/state separation would have a snowball's chance in hell of even being nominated for the federal judiciary?

Your opinion seems to be that the "no religious test" clause makes it fine to deny office to actually devout people, and restricts the government only from denying office to people who claim membership in a religion but ignore its teachings. E.g., I can't deny office to Jews -- just to people who refuse to eat pork or work on Saturdays. That doesn't sound plausible to me.

Again, you're conflating private beliefs and behavior with positions on public policy issues.

Here's a "religious test" that I think would be completely inappropriate and biased against devout Catholics:

Asking a nominee if he or she shuns artificial birth control.

Quizzing a nominee about the fact that when she was pregnant and the doctors warned her that the pregnancy was hazardous to her health, she chose to carry it to term because of her religiously based opposition to abortion (or quizzing a nominee about a similar situation involving his wife).

That would indeed be an impermissible "test" on religious grounds.

[The Real Bill]

Thanks, Cathy, for mentioning the de facto religious test for all federal positions: One must be a believer of some sort, or, at least, pretend to be. It's so very sad.

[M. Simon]

Ben,

You haven't answered my question.

If the proceedure is not necessary then to use it is malpractice.

Where are the lawsuits?

[Michael B]

"Except that you (and some others) are interpreting the ban on 'religious tests for public office' so as to mean that political beliefs rooted in religious faith cannot be a disqualification for any public office. I don't see where the Constitution says that." C.Y.

At that point you are beginning to say more than you originally said.

I agree with you and Volokh that the Republicans are, in large part, confusing religious qualifications with ideological qualifications. Though I do qualify that by saying "in large part," simply because I don't believe there is a bright, unambiguous dividing line that separates the two - at least to some degree it remains a debateable issue. Still, in the main, I agree with you and Volokh, rather than Bainbridge.

Firstly, Lockean political beliefs (i.e., classical liberal political precepts), to a some substantial degree, are "rooted in religious" beliefs, or at least they are rooted in moral precepts that in turn are derived, in part, from religiously founded a prioris. I say "in part" in this instance because Locke et al also used empirical evidence, rational arguments, etc. as well. Locke grappled considerably with the faith/reason nexus, or dialectic, broadly reminiscent of Pope John Paul's Fides et Ratio encyclical. (Disclosure, am not Catholic though am a Christian theist.)

This serves to highlight a second and primary point. Terms like "religious faith," "religious beliefs," etc. are typically bandied about in a manner that is far too ambiguous to be very helpful. There is a qualitative difference between religious dogma and beliefs per se (e.g., Mohammed as divine prophet, Moses as receiving the Law directly from Yahweh or the salvific blood of Jesus) and moral precepts and tenets that are roughly derived from, to one degree or another, aspects of the religion. Thou shall not murder, thou shall not covet thy neighbor's wife, etc. are moral precepts, not metaphysical religious dogmas (e.g., a monotheistic deity) or beliefs (e.g., concerning angels, the after-life).

Every law on the books has a moral quality to it and the moral values of a people (in contrast to their religious beliefs and dogmas per se), constitute legitimate grounds for debate before the legislatures elected to serve the people. Ours is a government that is constitutionally of, by and for the people, one not otherwise justified. Hence the morality (or moralities) of the people, regardless as to whether that morality in turn stems from tradition, religious faith, ideological beliefs and faith, on purely utilitarian or pragmatic grounds, abstract reason, etc. (or some combination of all the above, which is often the case) forms a perfectly legitimate set of grounds for public debate and eventually debate before duly elected legislatures.

[Cathy Young]

Michael:

Let me clarify my point.

I am not, I repeat not, saying that the mere fact that a nominee's public policy positions are rooted in religious faith should disqualify him or her from public office.

What I'm saying is that Senators can legitimately object to a nominee's positions on public policy issues even if those positions are rooted (or are perceived as rooted) in religious faith.

[Sen. Carl Talbot (R-Gor)]

SOLD to Knemon for eleven gold pieces!

May she please you and serve you well.

[Knemon]

woo-HOO!

Wait'll I tell Rhett!

[Knemon]

Um, I emancipate you.

Now then:
"What I'm saying is that Senators can legitimately object to a nominee's positions on public policy issues even if those positions are rooted (or are perceived as rooted) in religious faith."

True. What they shouldn't do is treat positions with a religious base as any different, more dangerous, "radical," etc., than those derived from other sources.

They're not all doing that, but I've read transcripts in which some senators seem to be crossing the line. The sacrosanct line which is drawn by Knemon, who sits at the right hand of the Father, reading the comics over his shoulder.

It is sort of sad to see the right playing the "faith card," but it calls to mind those anti-drug ads:
"I learned it from you, dad! I learned it from watching you!!"

[Michael B]

Cathy, yes, agreed.

That's why I indicated I agree with you and Volokh, rather than the formulations the Republicans are presently using. I should have more clearly indicated that even my caveat was intended in a cautionary sense rather than a less qualified sense.

For purposes of background, I've long thought that the phenomenological movement of the 20th century has the potential for bridging the chasms we face in our social/political discourse. That largely recalls, for me, Husserl, Maurice Merleau-Ponty, Jan Patocka, also others such as Kierkegaard as antecedents. People as far ranging as Sartre through John Paul II have been significantly influenced by that language and ontological grounding while avoiding both pro-metaphysical insinuations per se as well as equally presumptive anti-metaphysical dispositions (i.e., avoiding both traditional religious as well as more recent ideological a prioris in terms of the legislatively oriented debates that take place in the public square).

If that risks sounding pretentious, so be it, the point being that the phenomenological movement potentially provides both a breadth and a depth of grounding upon which some mutual philosophical comprehension and discussion can better take place, rather than parties forever talking past one another.

[thoreau]

On the Island of Doctor Thoreau, it will be illegal to abort experimental animals. Valuable data might be lost!

The laws concerning abortion of human fetuses will be decided by a special 4th branch of government chosen to handle that task. Given that this will be a libertarian island, I think we all know what the decision of that branch will be.

Given that this will be an island for scientists, using the "nuclear option" for judicial appointments will have a totally different meaning. Well, several actually. It could mean that the island no longer exists, it could mean that somebody did isotopic analysis, it could mean that the judges are using the particle accelerator when not hearing cases, or it could even refer to DNA experiments (cell nucleus).

The executive and legislative branches will be elected by sophisticated voting algorithms developed by the very best election mathematicians. The voting machines will use open source software and produce a paper backup. The digital record will be stored in whatever the most cutting edge memory devices are when I finally start this island colony for libertarian scientists.

But I won't be Doctor Thoreau if I don't finish this thesis. Back to work.

[Justin]

Kevrob says: Cathy still hasn't dealt with the question of nominees presumed to be zealously pro-life due to their presumed religious beliefs absent any public pronouncements on abortion (example given - Miguel Estrada).

I reply: its disingenuous to at once ignore someone responding to your post and then cry that nobody responded to your post.

Also, to everyone else, saying that your policy preferences fit a (self-described) version of various Christian sects, and thus rejecting those policy preferences is religious discrimination, is completely untenuous. Because, after all, if you had a judge who ruled based on, I don't know, Jesus's actual teachings of goodwill towards men and the poor, peace, and social equality, and people like Brennan, Marshall, and now Kennedy allowed that to influence their decisions, you go beserk.

The only thing that scares me, though, is that Tom DeLay says 2+2=5 and all you republican idol worshippers go, "2+2=5!!! It must be true!!!". This anti-religious facade (which I just *knew* Gerry would fall for) is so beyond the pale that the only response to seeing such a reaction to Ms. Young is that the Republican party are dominated people who have ceased to think for themselves.

[kevrob]

Re: Estrada

Here's a screed from the National Latina Institute for Reproductive Health.

Miguel Estrada won't tell the American public where he stands on Roe or most other legal principles. When the nominee went before the Senate Judiciary Committee and was asked whether he believed Roe v. Wade was correctly decided, he declined to provide a substantive answer. Senator Feinstein (D-CA) properly stated that "It strains credibility that a nominee to the Circuit Court of Appeals would still have no opinion on whether a case like Roe was correctly decided." Senator Schumer (D-NY) asked Estrada to name three Supreme Court cases in the last 40 years with which he disagreed. Again, he declined to answer.

The nominee's refusal to answer questions is compounded by the lack of a paper trail by which we may judge his nomination. There are no judicial opinions that he authored - he has never been on the bench and lacks any judicial experience - to guide us to an understanding of his legal philosophy. This lack of a record may be convenient for Mr. Estrada but it is troubling for those who seek to evaluate and judge him before he is put in a position where he may judge the laws that impact our daily lives.

The Bush Administration has exacerbated this lack of information by refusing to release internal memos written by Estrada from 1992 to 1997 while he was in the Solicitor General's office, the arm of the Department of Justice charged with arguing cases before the US Supreme Court. This request is not unusual, and it has been granted in the past to assist in the evaluation process.

Note: Estrada's opponents wanted President Bush to, in effect, waive President Clinton's lawyer-client privilege so they could go fishing for work product that they could use to drum up more opposition.

Speaking to Estrada's overall lack of responsiveness, Senator Reid (D-NV) declared, "Senators have a constitutional duty to evaluate this nominee. This nominee has stayed silent, refusing the American people a window into his views, judicial philosophy, and his manner of thinking. The administration has similarly refused to turn over documents that would illustrate those things to the Senate."

WHAT WE DO KNOW: ALARMING

The little we do is alarming. Miguel Estrada's associations and endorsements suggest he will not uphold the civil rights and reproductive rights protections we now enjoy, a critical concern for Latinas in the United States.

Mr. Estrada is a member of the Federalist Society, a conservative organization formed at the University of Chicago some twenty years ago with Antonin Scalia, current conservative U.S. Supreme Court Justice, and Robert Bork, ultra-conservative, failed U.S. Supreme Court nominee, serving as faculty advisors.

There are actually...gasp....libertarians who belong to the Federalist Society, some of whom are probably pro-choice. But, hey, "guilt" by association is OK, right?

Whole thing here.

Justin:

I post in my spare time, like most who read this board. Sometimes my connection times out before I can read through all the responses. 🙂

Kevin

[M. Simon]

The Republicans had a choice - Social Security reform or a culture war.

They have chosen a culture war.

In the end they will get neither.

[kevrob]

Re: my last post.

Those weird characters turn normal when viewed in Unicode.

Kevin

[Randy]

Belatedly, to the editors of the American Federalist Journal:

You said the following: "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."

The same argument could be made regarding Republicans and the Heritage Foundation, Focus on the Family, Family Research Council, and other organizations that seek to meld the Bible and the Constitution, or even replace the Constitution with the Good Book. Also, I suggest you rethink your statement about the ACLU being anti-religion. In particular, check this out: http://www.stcynic.com/blog/archives/2005/01/aclu_defending.php In short, it details the ACLU's defenses of Jerry Falwell, a Nebraska church, a Catholic man forced to participate in a Presbyterian drug rehab program, a Virginia Baptist church, and, as the page concludes:

"It should perhaps also be noted that the ACLU was a staunch supporter, along with groups like the Family Research Council and the Christian Legal Society, of the Religious Land Use and Institutionalized Persons Act that was passed in 2000, as well as the Equal Access Act, which guarantees that religious groups have the same access to public facilities that any other community groups do. And of course there was the situation in Massachusetts, where the ACLU defended the right of an elementary school student who wanted to hand out candy canes to his classmates with a card attached that had a Christian message on it. Are these the actions of an organization that hates Christianity and wants to forcibly remove it from our society, as so many folks on the religious right claim?"

[Ben]

I really don't have the time today to do a lot of posts, but I do want to clear a couple of things up before I'm done.

M. Simon wrote: "You haven't answered my question. If the procedure (partial birth abortion) is not necessary then to use it is malpractice. Where are the lawsuits?"

Yes, I did answer your question. To repeat: when a woman's life is really in danger, an emergency C-section is a faster and safer way to get the baby out. But a byproduct of this procedure is a baby. Partial birth abortions are typically done when there is NOT an emergency and when the "mother" does NOT want a baby. A C-section gives you a baby; partial birth abortion gives you a corpse with a crushed skull. The pro-abortion extremists just use the "emergency procedure to save the life of the mother" canard to protect the right to late, late, late term abortions and to keep the proverbial camel's nose out of the tent.

[Ben]

Cathy,

O.K., let me repeat: I do NOT hold the opinion that what the Dems are doing constitutes an unconstitutional "religion test." As merely a comment, however, I will say that I don't think the Founders ever envisioned a time when de facto agnostics who incorporated little or no religion in their lives would routinely claim a particular form of Christian identity as political window dressing as we see today.

But like I said, I am not claiming that a "religion test" is being invoked. What I am saying is that the Dems are dishonest about what they ARE doing.

The typical conservative Republican will freely admit that, while he is not opposed to atheists being federal judges in principle, he is opposed to giving judgeships to militant atheists who want to throw our nation's religious heritage in the trash. In fact, he'll even campaign on it. The Dems are doing the same thing, except in their case, they are opposed to devout Christians who hold traditional moral views. Only the Dems won't admit it. They try to pretend that the personal beliefs of a nominee like Bill Pryor are somehow separate from his religion, when in fact, the beliefs they are so opposed to are a direct result of his religion. In other words, the Dems are not willing to look a devout, traditional-morals Catholic voter in the eye and say, "We don't want your kind on the federal bench."

I understand why they do this, of course. It is a very distasteful political position to many moderate voters, many of whom grew up in the church and are now only moderately religious. The Democrats from the Northeast, especially, don't want to rile up their devoutly Catholic constituents by admitting the truth. They would rather pretend that there is something especially pernicious about Pryor or Janice Rogers Brown or Pricilla Owens that makes them different from the average devoutly religions, pro-life Christian. Republicans are pointing out the truth, and that's what has liberals so upset.

Sure, Republicans are using shorthand by saying that the Dems don't want any Christians at all. But the voters know the score. Devout, religious Catholics know who the "Christmas and Easter" Catholics are and consider them only barely co-religionists. Baptists all know folks who rarely step through the church door. And everyone knows where the Episcopalians and Presbyterians are these days.

So all I'm saying is: Stop the Lying. The Dems should just admit that for them, the bench is closed to those who are members of a conservative denomination and actually believe and follow what their church teaches.

[David]

"Are these the actions of an organization that hates Christianity and wants to forcibly remove it from our society, as so many folks on the religious right claim?"

Randy,

Those who make the claim see preventing the majority group from persecuting the minority group as persecution of the majority group.

More likely, there just citing cases where a reglious group lost its argument, and omitting the idea that another religious group won. By doing so, they count on two things. First, that the public won't analyze the data closely enough, and sadly, they don't. Second, that it won't matter to the people of the correct American faith whether the complainants were Catholics, Jews, Hindus,or atheists because they're all non-believers anyway.

[Tom Perkins]

Joe, almost none of them are traditional Christians. For reasons I personally think are good enough, traditional Christians are fairly rare, worldwide. There are more of them (percentagewise WRT population) in America than almost anywhere else. To the extent that the ten rejected nominees* have been "too radical" or "extremist conservative", their rejection is an attempt by the Democrats to prevent traditional christians from having a voice in the judiciary that is proportional both to the fraction of the population they represent and their desire to so participate.

I have the impression that mainstream Democrats (by definition the left most 48.5% or so of the voting population) regard traditional christians as stone-age savages*1 with actual potential influence--therefore their rights to participate in government must be voided by hook or crook wherever possible.

As I asserted before, the per-Senator blocks are no more constitutionally created or protected a practice than the filibuster, but the block is a qualitatively different measure than the filibuster. The block is 100% available to any senator, where once a nominee has been through the committee process, the Constitution does in fact require an up and down majority vote to take place in accordance with the Senate's rules--and a simple majority gets to make those rules.

* Several nominations have been prevented from coming to a floor vote because they are from states where previous Clinton nominees were blocked by Republicans, and the Democrats are playing tit-for-tat, and covering themselves by conflating their actions with an anti-extremist filibuster.

*1 I was going to say nazis, which I think is a better adjective for how the average Democrat feels about traditional Christians, but some idiots actually give credence to Godwin's suggestion.

Yours, Tom Perkins, molon labe, montani semper liberi, & para fides paternae patria

[Randy]

Ben-

You say "As merely a comment, however, I will say that I don't think the Founders ever envisioned a time when de facto agnostics who incorporated little or no religion in their lives would routinely claim a particular form of Christian identity as political window dressing as we see today."

I'd suggest you read about the Founding Fathers and how religious they were privately versus how religious they were publicly. Most of them WERE de facto agnostics who incorporated little or no religion in their lives, but claimed a particular form of Christian identity as political window dressing. As Shakespeare said, "There is nothing under the sun that is new."

[Ben]

Looking back at what I just wrote, let me make one more clarification. The Dems most certainly do have a "religion test," it's just not a Constitutional religion test. Religions come with certain beliefs built in, not only theological but moral, as well. When a person says he is Catholic or Baptist, it should mean that he mostly adheres to his church's teachings, especially the big ones. In days gone by, people generally would not claim a religious affiliation with a denomination whose teachings they largely rejected. But in today's "cafeteria" society, many people see nothing wrong with obstinately insisting they are Catholic or whatever and simply picking and choosing what they will and will not believe. So the Dems are basically saying they are fine with the squishes, they just don't want the true believers.

I can almost hear the confirmation hearing now:

Dem Senator: "Sir, are you Catholic."

Nominee: "Yes, Senator."

Dem: "Oh, come on now. Are you REALLY a Catholic?"

Nominee [suppressing a smile]: "Um, ah, well... [bursts into laughter] O.K., O.K. you got me. Hey, I was an alter boy growing up. That counts, right?"

Dem [laughing too]: "Sure that counts. We LOVE your kind of Catholic! Welcome to the federal bench, your honor."

[Ben]

Clarification of the clarification (maybe I should read these more carefully before posting, eh?):

When I said "Constitutional religion test" above, what I really meant is "religion test as defined in the Constitution."

[David]

Ben,

I would say that even the "true belivers" are "squishy". They just happen to have declared the issues that they personally find most important to be the litmus test of a person's faith.

[Randy]

Ben-

You said, "Religions come with certain beliefs built in, not only theological but moral, as well. When a person says he is Catholic or Baptist, it should mean that he mostly adheres to his church's teachings, especially the big ones."

While this is most certainly true, it remains a fact that it is not one's religious beliefs, but one's willingness to impose them upon others, even when others are of a different belief. The Jew working in the FDA despite his or her belief that eating pork is wrong is the exact same thing. If he or she were to begin imposing his or her religious beliefs upon the people against their will, you would never stand for it. However, when a Christian seeks to do the same thing regarding things like birth control and abortion, it's hunky-dory according to the formerly by-the-book Republican party.

According to Frist, he and the Republicans are willing to change the rules however necessary to suit their agenda. He has actually said as much! Not to mention, of course, the rampant hypocrisy of Frist voting to filibuster in 1996 and then in 2005 saying about Republicans opposing the "nuclear option," "...if what Democrats are doing is wrong today, it won't be right for Republicans to do the same thing tomorrow." That's right. He used it himself, wants to take it away now that he has no use for it personally, and deprive his party of its use in the future, even though it was good enough for him and "right" back then.

Crap. I rambled. Anyway, the point is this: if Republicans and conservatives are, generally, people of faith, one would think they would believe in universal and permanent truths. After all, if one takes the position that most Republicans are Christians, that means most Republicans believe in the Bible as a constant and eternal source of truth. They believe in it as a beacon of how to live their lives. How a party so rooted in the belief that a single document should be revered - that rules were made to be followed rather than jettisoned when no longer convenient - could decide to turn its back on the very document that brings their political existence into being and cast aside rules that don't provide them any short-term advantage while creating new ones so they can play Ramses and build pyramids while forcing the minority to struggle to adapt to new and ever-changing rules of engagement is anathema and a political abomination.

[joe]

"When a person says he is Catholic or Baptist, it should mean that he mostly adheres to his church's teachings, especially the big ones."

This sentence demonstrates how far away from actual religious discrimination the right's arguments are. When country clubs refused to admit Jews, the membership committee didn't actually look into whether Dr. Finkelstein kept kosher. When the Sudanese government kicks out Catholics for preaching Christianity, they don't actully quiz the accused on their position on grace by works vs. grace by faith. That, ladies and gentlemen, is discrimination based on religion.

Rejecting the elevation of a federal district court judge to the appellate level because of a disagreement with his judicial and political beliefs is discrimination based on judicial and political philosophy. And no, you don't get a special pass for extremist political and judicial opinions merely because you're pious.

[rob]

joe, could you define "extremist political and judicial opinions?"

I mention this because I agree with you that "Rejecting the elevation of a federal district court judge to the appellate level because of ... his judicial and political beliefs is discrimination."

But based on our previous discussions (and arguments) about judicial and political philosophy, what seems extremist and unconstitutional to me often gets a free pass from you (and probably vice versa).

I ask for defition because I suspect that you're just using "extremist political and judicial opinions" as a code for anyone who doesn't agree with you.

I have yet to see a discussion of the standards for nomination and ascension to the bench include screening out "extremist political and judicial opinions" or what that would entail...

[Ben]

Randy,

First of all, and as has already been mentioned, the filibustered nominees have records of respecting the law. Second of all, to some extent we all want to impose our views on others. All of the decisions involving cultural, social, environmental, and religious aspects of the public square come down to one person's sensibilities triumphing over someone else's. As for abortion, pro-lifers believe it is murder, so they can no more "let everyone make their own decision" about it than they could stand idly by and let every man make "his own decision" about whether or not to shoot his wife.

As for the filibusters, sure there is hypocrisy. You mentioned Frist, but what about Byrd who now screeches about the Constitution being somehow violated but advocated limiting filibusters three times when the Dems were in the majority? Nine of the current Senate filibuster supporters voted to end ALL filibusters in 1995, and in 1998 Sen. Leahy said on the Senate floor that he would "never" support a filibuster of a judicial nominee.

When Republicans say the Dems are violating the Constitution by filibustering nominees, they are full of it. The Dems are even more full of it when they say it is unconstitutional to change the rules, since the Constitution specifically says that the Senate shall determine its own rules.

And that, alas, means that you are in that same camp, since you explained that the Republicans -- as followers of rules -- are duty-bound to keep the filibuster rule in tact. Senate rules get changed all the time, especially at the start of every new Congress. There is nothing sacrosanct about the filibuster rules. In fact, there are dozens of cases in which current Senate rules already ban the use of the filibuster. The GOP is in the majority and they have the right to change the rules; the public will judge their actions accordingly. Personally, I'm not a big fan of changing the rules, but that's just me.

[Steve]

Oh good, you're back, joe. Do you have any evidence now for your statement yesterday that Clarence Thomas is dumb?

This whole thing reminds me of one of my favorite Mencken essays. I don't have the book with me, so I'll grossly paraphrase his point: Why do people get a pass on stupid opinions if they're based in religion? If someone thinks the world is flat, it's pretty safe to say he's an idiot. But if someone thinks the world is 6,000 years old, as a large percentage of Americans do, he's not generally regarded as an idiot, because that's a religious belief. What's up with that? (as I said, it's a gross paraphrase)

[J Mann]

Cathy,

Thanks for your response - I thought you put it very well.

This takes us back to the knotty subject of discrimination. I don't know your personal view, but I'd guess the general view at Reason (being libertarians) is that: (i) discrimination unquestionably happens; (ii) it's hard to tell, unless someone admits it, when someone is discriminating; and (iii) the cure is worse than the disease, so we should let discrimination wither privately rather than rooting it out.

Women and blacks and jews and everyone else have all had the experience of being pretty sure that they didn't get some job or opportunity because they were women or blacks or jews or whatever. The problem is that you have to rely on your gut as to *which* jobs you lost because of discrimination, and your gut tends to be much more sensitive than people outside of your group.

So is Prior being discriminated against because he's Catholic? If a given Senator would permit a vote on a similarly situated person who isn't Catholic, then I'd say yes. So if a non-religious candidate, who also had supported partial birth abortion legislation, would get a vote, then Prior's being discriminated against.

(None of this answers the questions of whether the discrimination is *rational* and whether it's *appropriate*, but just gets us to the point of whether it's discrimination.)

I do agree that if someone shows up and says "Because of my Catholic beliefs, I will never permit a person to receive the death penalty as a judge/law enforcement official/whatever", then it's silly and inappropriate for the person to cry "anti-Catholic bigotry" if he or she is not confirmed.

The trickier question is when the person says "although I am opposed to the death penalty, I will faithfully enforce the law as written," and Congress says "we don't believe you."

At that point, the question of discrimination becomes one of intent - does Congress not believe the person because he or she is Catholic or solely because of the statement - and it's not surprising that members of the target group (and advocates of the candidate) are more likely to cry "discrimination!" than others.

[raymond]

I'm dazed by all this. Still, I'll try to add something to the debate, even if what I add is somewhat hors sujet.

1. Catholics are not expected to obey blindly. Catholics are supposed to follow the dictates of their consciences, even when these are in contradiction to Church teaching. Thus, the woman who is convinced that birth control is "good" may, in the eyes of the Church, have a conscience in need of fine-tuning. But by using birth control she is not "sinning".

2.

Petitioners' protestations to the contrary notwithstanding, a constitutional right that protects "the choice of one's partner" and "whether and how to connect sexually" must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia (if the child should credibly claim to be "willing"). For all intents and purposes, petitioners seek to enshrine as the defining tenet of modern constitutional jurisprudence the sophomoric libertarian mantra from the musical "Hair": "be free, be whatever you are, do whatever you want to do, just as long as you don't hurt anybody."

...

Contrary to the clich? so tritely tossed about in freshman poli-sci courses, the States can and must legislate morality. John Stuart Mill is not a founding father... Human beings are by their nature social creatures, with concerns for the physical and moral welfare of others besides themselves...

Even legislation that is largely symbolic and infrequently enforced (due to other salutary checks on government power, like the Fourth Amendment) has significant pedagogical value. Laws teach people what they should and should not do, based on the experiences of their elders. The States should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences. Amicus Brief, Lawrence v Texas

I was led to read this Brief (by Pryor) as a result of a news story about the proposed Alabama bill forbidding public-school libraries from having books by or about homosexuals.

(It's fascinating. I'd say it goes counter to everything I believe in. This is definitely not a guy I'd like to see on the Federal bench.)

And suddenly, it all came into focus. The attacks on the Supreme Court for Lawrence and Roper v. Simmons, the attack on Whittemore and the federal judiciary in general, the book-banning and the proposed "marriage" amendment... They are all part of a concerted, moralistic attack on individual liberty and property rights.

Pryor et al. are not "pro-life". Their defense of state killing is evidence of that. What these conservatives want is to impose their moral values on me. They want me to act "morally". They want to deny my right to choose in any real way. They're playing eminent domaine on my body and on my mind.

Ashcroft, Gonzales, Rumsfeld, Pryor...

What a scarey country you've got there.

[DG]

Raymond,

Your ignorance is palpable. The Alabama bill you mentioned does not forbid "public-school libraries from having books by or about homosexuals." It forbids public school libraries from purchasing with public funds books which portray homosexuality in a positive light. It says nothing about authors.

As for your opinions about Pryor, you are entitled to them. I don't much like Ginsburg and Breyer myself, but there you go.

[J.DeWalt]

"As soon as man began considering himself the source of the highest meaning in the world and the measure of everything, the world began to lose its human dimension, and man began to lose control of it."

Vaclav Havel

"Let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds... reason and experience both forbid us to expect that national morality can prevail, in exclusion of religious principle."

President George Washington
Farewell Address, 1796

"History fails to record a single precedent in which nations subject to moral decay have not passed in to political and economic decline."

Douglas MacArthur

"Not until I went into the churches of America and heard her pulpits flame with righteousness did I understand the secret of her genius and power. America is great because America is good, and if America ever ceases to be good, America will cease to be great."

Alexis de Tocqueville

"Here is the nation God has builded by our hands. What shall we do with it?"

Woodrow Wilson

[raymond]

Go palpate this.

[raymond]

On this page you'll find the text of the bill.

[DG]

Ah, CBS... as incompetent as they are biased. I love how, other than the legislator who wrote the bill, they only quoted its critics. Nothing like a little one-sided journalism.

No, the CBS report is wrong. From the actual bill: it makes illegal "the purchase of textbooks or library materials that recognize or promote homosexuality as an acceptable lifestyle." Nothing about authors.

But don't worry, CBS stands by the original story. After all, Dan Rather has a memo...

[Steve]

Who cares if it specifies gay authors? That bill is one of the dumbest things I've ever read. It refers again and again to "the state's laws against sodomy," and says that schoolchildren can't be taught that they have a legimate right to engage in illegal sexual behavior.

Maybe word hasn't gotten to these slack-jawed yokels yet, but SODOMY ISN'T ILLEGAL ANYMORE. There was a big Supreme Court case, made all the headlines. Fucktards.

[DG]

Wow, this bill really has the left hyperventilating. Even the sober-sounding blog got it wrong. They claimed the bill is "to prevent public libraries and other public entities from owning, purchasing, or making accessible any materials regarding homosexuality or gay culture."

But since they helpfully posted the text of the bill, you can see that they are wrong.

[DG]

Steve,

Whatever. Obviously, this upsets those who believe that kindergarteners should be taught cross-dressing and pederasty as part of the core curriculum. I mean, heaven forbid the kids should have to go to the city library to get pervert training. Hell, maybe they should require gay books to be in every classroom instead.

[Steve]

DG,

I didn't mention anything about the merits of the bill. Personally, I don't think there's anything wrong with homosexuality, so I don't have a problem with "gay" books in the library. On the other hand, I don't think it's horrible censorship to exclude them, because it's a public school, and lots of parents probably don't want their kids reading that.

But, read the bill. As I said, the idiot who wrote it refers again and again to "illegal conduct" and "the state's sodomy laws." I'll say it slowly this time so even an Alabama assemblyman can understand: SODOMY. ISN'T. ILLEGAL. ANYMORE. Anyone with a minor interest in current events knows this. Why doesn't this jackass assemblyman?

[DG]

Well, I would assume that this guy wouldn't go to all the trouble to pass a bill that was DOA, so I'm guessing the "sodomy and sexual misconduct laws" of the state have more in them than what the SCOTUS struck down. Probably something about improperly influencing minors.

[Cathy Young]

Ben:

First of all, you are making the insulting assumption that all Christians who don't want to translate the teachings of their church into a political agenda aren't "real" Christians. (Are you saying that Giuliani, for instance, is a "Christmas and Easter Catholic"?)

Secondly, regarding your "why don't the Democrats stop lying" mantra. The Democrats have made it very clear that they don't want zealous champions of a ban (or restrictions) on abortions on the federal bench. And yes, that clearly applies to all those who feel that their religious beliefs requires them to champion a ban on abortion. What else to you want the Democrats to say? "Yes, we're using a confirmation litmus test that will effectively screen out orthodox Catholics and devout conservative Protestants?" That's a bit like saying, "Why don't proponents of race-neutral college admissions just stand up and say that they advocate policies that will basically purge African-Americans from elite schools?"

As for the Dems' hypocrisy on the filibusters, I agree, of course. So what?

[Dan]

Except that you (and some others) are interpreting the ban on "religious tests for public office" so as to mean that political beliefs rooted in religious faith cannot be a disqualification for any public office. I don't see where the Constitution says that.

And I don't see any place in the Constitution where you can arbritrarily slap the label "political" on a religious belief and use that as a rationalization for denying someone with that belief a political office.

The belief that this is not "one nation under God" is EVERY BIT AS POLITICAL as the belief that abortion is infanticide. Under your logic it is Constitutional to deny office to anyone who does not believe in God, simply by pointing to the fact that debate over the Pledge is a political hotbutton. Under your logic it is Constitution to deny office to a Jew if a large portion of the electorate hates Jews -- because, hey, that makes Judaism "political". And, well, fuck that idea.

[raymond]

Talk about CBS being biased.

But back to Pryor.

I don't need laws written by Allen or DeLay or DG to teach me to be "moral". I like chanting sophomoric libertarian HAIR-mantras about being free and not violating the rights of others. And except for his defence of capital punishment, I'll take Mill over Pryor any day.

Law. "Legal" has never meant "moral". That mighty, dead Law isn't an expression of virtue, any more than the law instituting the draft or the one allowing State killing or the one obliging Northerners to return fugitive slaves or (dare I say) the one permitting abortion is.

Law.

And what does Pryor want to teach you with _his_ interpretation of the law? That homosexuality and necrophilia are two sides of the same coin? That without the Sodomy Law Texans will all be humping their steers?

And you, my dear DG. Are laws _your_ moral guide?

And if laws are your guide, what of Federalism? Is morality that relative, that wishy-washy that what is good and just in one state is evil in the state next door? Good heavens. How _do_ you figure out what choices to make?

Kindergarteners. Jeez.

[Ben]

Cathy,

The filibuster hypocrisy remarks were directed toward someone else.

As for the other stuff, I feel that there is a lot of talking past one another going on here. I don't want Roy Moore on the federal bench making law. But Bill Pryor, et. al. are not Roy Moores. You yourself have defended Pryor against such charges. So I'm not advocating Christian judges making law for everyone else. That would be as bad as liberals making law from the bench.

I, like most conservatives, want strict interpretists (is that a word?) on the bench, regardless of political persuasion. Given that liberal judges are so activist these days (by design, I might add), conservatives are about the only ones left who fit the bill. And there is no reason why conservative Christians who hold this philosophy should be excluded. As for abortion and Roe, that's a special case. Overturning a bad activist decision is not making law; it's restoring it.

I understand your analogy, but I don't buy it. Like I said (or somebody said), the Dems want to act like Pryor and the others are not garden-variety conservative Christians, but an especially pernicious variant of them. In fact, judges like Pryor represent the views of something like 30-40% of the U.S. population, and much higher percentages in the Heartland. So no, the Dems are not openly admitting what they are doing. Using your analogy, it would be like opponents of race-based college admissions insisting that doing away with preferences would only affect 50 students nationwide, when we all know that's bogus.

[DG]

Raymond,

Pryor has his opinions, but in his official capacity he has upheld the law.

And no, laws are not equivalent to morals. But the law, where applicable, should -- and often does -- reflect our morals. Law can be amoral, but it shouldn't be immoral. Sometimes it is, of course, as you noted with the slave laws.

What fascinates me is how the left talks about this as if these conservative judges will be making law, which is exactly what conservatives are against. The problem with Lawrence was not its morality, but that it made sodomy a freakin' Constitutional right. But that's the problem with the left: They think everything should be enshrined in a constitution, safely out of the reach of the voters. Just look at the bloated EU constitution for proof of this. The glory of the U.S. Constitution is how limited it was, at least until liberal judges started molding it like Silly Putty. Now conservatives are forced to begrudgingly support a federal marriage amendment because it's the only way they can keep the issue away from the out-of-control judges.

[Cathy Young]

Dan:

And I don't see any place in the Constitution where you can arbritrarily slap the label "political" on a religious belief and use that as a rationalization for denying someone with that belief a political office.

Arbitrarily?

If you want your belief (religious or otherwise) to be a basis for legislation or public policy, then it's a political belief. Simple, no?

The belief that this is not "one nation under God" is EVERY BIT AS POLITICAL as the belief that abortion is infanticide. Under your logic it is Constitutional to deny office to anyone who does not believe in God, simply by pointing to the fact that debate over the Pledge is a political hotbutton.

It would be entirely constitutional for conservatives to try to block the judicial nomination of a militant atheist who had spent his public career championing the removal of religious symbols from public places.

Except that, of course, our hypothetical militant atheist would not get anywhere near the bench.

Under your logic it is Constitution to deny office to a Jew if a large portion of the electorate hates Jews -- because, hey, that makes Judaism "political".

Sorry, Dan, that's pathetic. Is that your equivalent of invoking Hitler as per Godwin's Law?

If a zealous advocate of the view that Israel should not give up any of the settlements in the West Bank and Gaza was up for a government post that had to do with Mideast policy, it would certainly be appropriate to make an issue of his beliefs on the subject of the settlements. Even if he was Jewish and claimed that his views on the subject were based on his religious faith.

[Stevo Darkly]

Before this thread goes under, I must say I am in awe. Most of this posts were pretty deep stuff, and well argued. And it showed we a thread can reach 200+ posts even in the post-Gunnels era. And no one called anyone a twit, or a jackass, or a turd, or a wannabe-theocrat.

But most of all, I enjoy this mental image I have: a smokey, barbarian tavern with a raised platform upon which Cathy Young debates skillfully with various members of the crowd -- and utterly ignores the concurrent distraction of extraterrestrial male chauvinists bidding for ownership of her very own flesh. This is poise, my friends. I applaud.

PS: It would have been even better if the auctioneer had interjected with such comments as, "She has spirit, this one!" and such like. A missed opportunity.

[Stephen Denney]

I would be interested to read a description of each of the judicial candidates who have been filibustered, and why the opposition. From what I have heard, it involves more than just abortion, or the religious beliefs of the candidates.

[Cathy Young]

And no one called anyone a twit, or a jackass, or a turd, or a wannabe-theocrat.

Dangit! This is no fun.

By the way, I'm not sure what the Reason policy is rearding the public auctioning of its staff writers....

[Knemon]

I'd like to point out that I *promptly* manumitted you. None of this George Washington on-the-deathbed stuff.

A blog cannot long exist half ... well, you see where I'm going with this one.

So we're all agreed, then:
Roy Moore = Jackass
Pryor = Unfairly Borked
Federalism = Good
Torturing Puppies = Bad
Giuliani = Savior of the Universe

(cue Queen)

(Rudy - AAA-Aaaahhhh! he'll save every one of us!)

... okay, maybe not so much agreed on that last one?

[Cathy Young]

Let me get back to you on the torturing puppies bit.

*looks around nervously*

Just kidding, folks. Just kidding.

Anyway. On the basis of what I've read so far, yes, I do think that Pryor was unfairly borked. (Can one be "fairly borked"?)

So I guess we're in agreement, Master.

Oops. Ex-Master.

[Tom Perkins]

Hello Cathy Young,

It's been my experience that people only invoke Godwin's assertion when they have no effective counter argument.

The Democrat's are making use of the filibuster because they can't get what they want with the block, because they don't have enough Senators in enough states to prevent people they find unnacceptable from being confirmed by the now Majority Republican party.

There is no consitutional provision either for the block or the filibuster, and the democrats are scheming to deny from traditional Christians the political clout which their numbers, organization, and determination make due them.

It is a fundamentally un-democratic act by a minority party to forestall the consequences of having lost both houses and the executive to the other party. The Constitution, while not supporting either a filibuster or block, plainly intends that when people of like mind are in the executive and both branches of the legislature, they run the show.

If the Democrats want to keep the Republicans from confirming their nominees, the above board way to do it is to win elections.

As for the innapropriateness of conservatives mentioning disparate impact, the obvious counterargument is that the left obviously places no principled credence in the concept, because they reject it as soon as it suits them.

Yours, Tom Perkins, molon lab, montani semper liberi, & para fides paternae patria

[Justin]

Regarding the Lawrence nonsense,

When did the Republican party believe that the government has the full authority to regulate except in areas in which there exists a *constitutional right*, a right that is high holy and certainly could not extend to *sodomy*.

I thought most of us have interpretations of the Constitution that went beyond that. Indeed, the question is under what grounds does the government have a legitimate regulatory purpose. Since Texas made no showing that a ban on gay sex would have any significant social benefits (collaborated by their lack of enforcement), I think the question in Lawrence was "can states forbid actions simply by slapping on a normative label and shipping it on its way"? Lawrence, it turned out, was a very conservative-liberterian decision, if one's animosity towards gays is pushed out of the way.

[Cathy Young]

Lawrence protects not just "sodomy" but consensual sexual behavior between adults. To say, "but it made sodomy a freakin' Constitutional right!" is like saying that the First Amendment "makes shaving your head and prancing around in an orange robe a freakin' Constitutional right!"

[Jason Sonenshein]

There is no consitutional provision either for the block or the filibuster, and the democrats are scheming to deny from traditional Christians the political clout which their numbers, organization, and determination make due them.

It is a fundamentally un-democratic act by a minority party to forestall the consequences of having lost both houses and the executive to the other party. The Constitution, while not supporting either a filibuster or block, plainly intends that when people of like mind are in the executive and both branches of the legislature, they run the show.

--Comment by: Tom Perkins at April 27, 2005 10:20 PM

Those damn Democrats. Don't they understand that they have a constitutional duty to roll over and play dead? How insolent of them!

[Randy]

"Respecting the law," unfortunately, is subjective. Considering the leeway judges have regarding adhering strictly to legal precedent and statutes(albeit not a lot, but cumulatively it can mount pretty quickly), a judge can most definitely be seen as "respecting the law" by some while the other side seems that judge as an "activist." See also: Those damn activist Massachusetts judges who legalized gay marriage.

And I don't agree that we all want to impose our views upon others. Any good libertarian would prefer other people agreed with him or her, but would gladly allow others to live as they see fit so long as he or she can also live as he or she sees fit. If you'd consider that imposing one's views upon others, so be it, but you'd be wrong. Allowing others their views, so long as those views do not impose upon your rights, is the ultimate in keeping one's views one's own. I don't think people have any reason to own a .50 caliber rifle, but that doesn't mean I want to take away someone else's right to own one. It's like the old abortion saw: Don't like abortion? Don't have one!

"As for abortion, pro-lifers believe it is murder, so they can no more 'let everyone make their own decision' about it than they could stand idly by and let every man make 'his own decision' about whether or not to shoot his wife."

I think wearing a plaid shirt with polka-dot pants is a crime against humanity and should be punished by imprisonment. We punish other crimes against humanity, so shouldn't I, as a judge, be able to punish THIS crime of humanity by dint of my own opinion of its status as crime?

Regarding hypocrisy on all sides, we're in total agreement. Everyone is for their own advantage in politics. The irony is that Republicans made their hay by being rule-followers. Look at the 2000 election. Al Gore was busy trumpeting about a fairly counted vote, but what did Bush argue? These are the rules of the elections, and we must follow them exactly, for we are a nation of laws, not people. Suddenly, given a majority, they throw out the very philosophy that won them temporary favor and control of the executive branch to get a temporary advantage that almost surely will be used against them in the future and deemed unfair when it next happens.

And, once more, we agree regarding the changing of rules. If people refuse to both agree upon and cherish rules of engagement, be they in warfare or politics, there is no hope for any kind of compromise of any real significance (which is the whole point of the existence of the two-party system).

[Tom Perkins]

Jasn wrote:
"Those damn Democrats. Don't they understand that they have a constitutional duty to roll over and play dead? How insolent of them!"

If they are so pathetically incompetent they manage for many elections in a row to loose both houses and the executive--when the Constitution in fact demands nothing more than majority rule in each house--then their duty is to figure out how their party platform conflicts with what the majority of Americans want and change their platform accordingly.

Until they do that, they are in fact doing themselves and the country a disservice.

Among other things i don't much disagree with, Randy wrote:
"I think wearing a plaid shirt with polka-dot pants is a crime against humanity and should be punished by imprisonment. We punish other crimes against humanity, so shouldn't I, as a judge, be able to punish THIS crime of humanity by dint of my own opinion of its status as crime?"

If that's an argument you want to take to the people, by all means please do it.

Regfarding your comments about rule following, I think you are wrong to conflate the Republicans wanting actual statue laws (re Bush v. Gore) to be followed vs. changing rules in a deliberative body which is entirely at the discretion of a simple majority. BTW, I would have preferred the explicitly constitutional option have been taken of having the Republican legislature in FL pick that state's electors as opposed to the SC stopping the "counting until we get number we like."

I also think you mistake the nature of the two party system. It has never been about broad consensus, it has always been about getting the rightmost or leftmost 50% plus 1.

This is fine as long as government can only make laws where 3/4qtrs of the people have agreed to give them the authority to make laws. this fundamental supermajority requirement for effectively changing the constitution has long since fallen by the wayside, along with other crucial protections of liberty such a fully informed juries and the selection of senators by state legislatures.

Once the Progressive movement began to erode these protections (largely by enactments of the Democrats), no compromise is required to rule, and rule harshly at that. The democrats deserve to reap as they have sown. They wanted pure majoritarian democracy, now they should get it good and hard (apologies to Mencken)--except in this case, the Republicans are not in any way slighting the Constitution to do it.

Yours, TDP, ml, msl, & pfpp

[Knemon]

Thanks. Now how 'bout fetchin' me a mint julep?

/this joke should probably stop right now before it gets out of hand

[kevrob]

Randy's "polka dot shirt" analogy is laughable. Look, I am pro-choice. I don't think that the destruction of a fertilized egg early in a pregnancy is the killing of a rights-bearing individual. Any killing of a rights-bearing individual should be considered some species of homicide, whether justifiable or not. If our pro-life friends are right, and a fertilized egg at [Time: Zero + some fraction of a second] is equivalent, in moral tems, to a babe in momma's arms, then the "crime" of abortion is categorically different than violating the Ugly Shirt Act, as it would have a victim. I thought we libertarians understood the difference between laws enacted to protect the rights of individuals, and the naked use of the police power to enforce the tastes or peculiar scruples of temporary majorities? Few anti-abortion advocates want to ban dancing or put women in purdah, and conflating the two types of offenses (violations of rights v. promotion of "morality") is unfair and philosophically sloppy.

I'd sure like to see what would happen if a President nominated an atheist or agnostic who was sympathetic to the pro-life cause based purely on biology and philosophy. I bet heads on both sides of the Senatorial aisle would explode!

Kevin

[Jason Sonenshein]

If they are so pathetically incompetent they manage for many elections in a row to loose both houses and the executive--when the Constitution in fact demands nothing more than majority rule in each house--then their duty is to figure out how their party platform conflicts with what the majority of Americans want and change their platform accordingly.

Until they do that, they are in fact doing themselves and the country a disservice.

--Comment by: Tom Perkins at April 28, 2005 10:06 AM

Mr. Perkins, I trust that you would have said the same thing about the Republicans and their filibuster of Justice Fortas in 1998. Actually, you are right that the Democrats need to figure out what they need to do to start winning elections again. However, while they're doing that, they also need to use whatever means are at their disposal to minimize the damage that the Republicans cause to the country. Not to do so would be to cause the country a disservice.

The democrats deserve to reap as they have sown. They wanted pure majoritarian democracy, now they should get it good and hard (apologies to Mencken)...

--Comment by: Tom Perkins at April 28, 2005 10:06 AM

The Republicans filibustered the nomination of Justice Fortas in 1968 and prevented many of President Clinton's judicial nominees from coming to a vote of the full Senate. The Republicans deserve to reap as they have sown. They wanted the use of anti-majoritarian measures to prevent simple-majority votes by the full Senate on judicial nominees, now they should get it good and hard (apologies to Mencken).

[kevrob]

Fortas was certainly opposed for his judicial philosophy, but his outside activities allowed the Republicans to couch their disapproval as criticism of his not upholding proper standards of judicial conduct. See:

In July 1968, Fortas became the first sitting justice to appear before the Senate Judiciary Committee to answer questions at a nomination hearing. It did not go well. The hearing confirmed that Fortas engaged in substantial political activity while sitting as a justice -- attending White House staff meetings and briefing President Johnson about court deliberations. The subsequent revelation that Fortas accepted $15,000 for a series of lectures funded by his former law partners and clients sealed the fate of his nomination. A cloture motion failed, and the nomination was withdrawn. - "Juan Non-Volokh" at the Volokh Conspiracy.

If the Democrats had plausible charges of "corruption" to bring against any of President Bush's nominees, I'd say their using the filibuster would be comparable to what was done to Fortas. We may yet see that if W tries to put Scalia in as Chief, what with his duck hunting trips, etc.

Kevin

[Knemon]

kevrob - some of "your pro-life friends" don't hold an absolutist all-post-conception-termination-is-morally-equivalent-to-murder position.

Some, while agreeing that the infamous "blob of cells" might not be as much a person as you or I or Bjork, nevertheless see late-term abortion as the moral equivalent of murder, and want to ban it (and are starting to make headway in this area).

That position seems a lot less ridiculous (actually, it doesn't seem *at all* ridiculous) and it'll take more than reductionist bluster to convince people otherwise.

(I try to stay out of this one - not having the requisite equipment to bear one, I feel uncomfortable telling other people how to treat their blastocytes/fetuses/babies.)

I don't know where

[Gordy]

When Dan wrote:

"And there is no reason why conservative Christians who hold this philosophy ["interpretism"] should be excluded,"

I finally clearly saw where I think he's wrong, and Cathy's right. It's the "should be excluded" bit, how they understand that as action or right.

I think Cathy has maintained the point that Senators do have the right (and perhaps the duty) to vote down a judge who they think will make a particular policy choice, in this case on abortion rights.

Dan seems to be saying that doing so is discriminatory because this policy preference on the part of the judge is based on his or her beliefs, and that having such beliefs is constitutionally protected (or whatever), or in other words, that it is unfair to keep this judge from having the chance to enshrine this conviction in law.

But, as again, I THINK Cathy is saying, it is exactly the job of a Senator (or one of them, anyway) to oppose nominees who he or she thinks will make (what they see as) the "wrong" decision (on any particular issue, but especially those that are important to that Senator's constituency).

Whatever the justification or belief or religious affiliation, what is at issue is that a judge will make policy. And if Democrats are against anti-abortion law, or for Roe, etc., it can't be discrimination for them to oppose opposite-minded justices, because their job, simply put, is to vote their own ideas.

And finally (and I think this was the initial point), that it is basically pathetic that people on the right are doing a poor-me dance, crying religious prosecution wolf, because they haven't yet been able to keep Democrats from holding off a vote.

I honestly don't yet know what to make of this filibuster mess, whether Republicans will be right to dissolve it, but after reading Cathy's articles, and reading what I have of the Sunday God-fest against the filibuster, I am sure that Republicans who support or defend such behavior aren't being honest enough about how silly and desperate it all looks.