Sen. Sam Brownback (R-Kan.) says he will stop blocking a vote on judicial nominee Janet Neff, but he still has questions for the Michigan judge about a lesbian commitment ceremony she attended in 2002. The ceremony, which was held in Massachusetts, involved the daughter of Neff's longtime neighbors, a woman she views as a member of the family. But Brownback isn't satisfied by that explanation. "I would like her to come back through committee so she can testify what took place, factually," he says. He wants to hear more about "her legal views on same-sex marriage and her ability and willingness to be impartial."
If Neff owned a gun, would Brownback question her impartiality in cases involving the Second Amendment? If she went to church, would he wonder whether she could fairly address Establishment Clause controversies? If she liked to read newspapers, would he ask for reassurance that she could be objective in the trial of a reporter charged with illegally revealing classified information? If she smoked pot in college, would he ask whether she can be trusted to preside over drug cases?
Neff already has made the pro forma declaration that she will be guided by the law, not her personal views, so what else does Brownback want? An assurance that she will decide cases involving same-sex marriage the way he would? So far Brownback has not asked for that in so many words, but at one point he did offer to lift his block on Neff's nomination if she would promise to recuse herself from all such cases. According to The New York Times, the Judiciary Committee member "said he did not realize his proposal—asking a nominee to agree in advance to remove herself from deciding a whole category of cases—was so unusual as to be possibly unprecedented. Legal scholars said it raised constitutional questions of separation of powers for a senator to demand that a judge commit to behavior on the bench in exchange for a vote." Legal scholars such as Reagan administration Solicitor General Charles Fried, who had this to say:
First of all, people go to parties for all sorts of reasons….It would be inappropriate for the judge to recuse herself from any such case because it is a judge's duty to sit on cases [unless he has a clear conflict of interest]. For her to agree to any such restriction in this case would be wrong.
Sam Brownback for President: So Right, He's Wrong.