Religious Bigotry & Judicial Nominations

Cathy Young has a provocative editorial on the recent judicial confirmation kerfuffle. The quick primer: Democrats have been blocking President Bush’s judicial nominees at an unprecedented rate, and Republican Senators have begun to cry foul on grounds of religious bigotry. Young argues that the Democrat position isn’t about bigotry, but public policy:

Of course, the issue isn’t simply ”faith,” but a nominee’s views on public policy issues. A pro-abortion-rights litmus test for federal judges may be wrong, but it’s preposterous to claim, as some conservatives have, that it amounts to a religious test that disqualifies ”serious” Catholics and evangelical Protestants from public office. Surely, it would apply just as much to atheists or agnostics who oppose abortion on secular grounds.

Eugene Volokh agrees with Young: “One can plausibly fault the Senate Democrats’ opposition to the President’s judicial nominees on various grounds, but ‘religious bigotry’ is not one of them.”

Steve Bainbridge offers this response: “The Democrat litmus test for judges has a disparate impact on devout Catholic and Evangelical nominees for judicial office, which is a perfectly appropriate ground for criticizing that litmus test.”

To which Young responds: “In a way, Prof. Bainbridge’s invocation of ‘disparate impact’ confirms a point I made in my column: that the cry of ‘anti-religious bias’ has become the ‘political correctness of the right,’ a ‘faith card’ similar to the left’s race/gender card.”

My colleague Ann Althouse agrees: “Both Democrats and Republicans have exploited religion to manipulate people in the current squabbles over the judiciary. Some Democrats assert that nominees are religious zealots who will drag us into theocracy. And Republicans will try to immunize nominees because their unacceptable views have a religious source. Both parties need to avoid stirring antipathies about religion and irreligion for political gain.”

I am usually quite content to join anyone who accuses politicians of manipulation, but this is an easy sidestep, isn’t it? Even if I agree with Cathy Young and Eugene Volokh (and I do) that the Democrats’ motivation is based on abortion policy and not religious bigotry per se, Steve Bainbridge’s empirical claim that devout Catholic and Evangelical nominees will be disproportionately affected deserves a response.

To those who support the status quo with regard to abortion, Steve’s claims of disparate impact ring hollow. Yes, nominees who advocate the usurption of established constitutional rights will be disproportionately affected by a policy of upholding constitutional rights, but so what? Setting aside for the moment the fact that abortion is sui generis in constitutional discourse, I think that Steve is concerned that an effective ban on devout Catholic and Evangelical nominees will affect not only abortion cases, but also many other areas of the law. This seems like a plausible claim, though it is not self-evident, as I suspect that many “religious” nominees would be willing to uphold the status quo on abortion. Nevertheless, let’s assume Steve is right. What can be done?

Here is the root problem: we disagree about abortion, and rather than confronting the issue directly through democratic institutions, we have allowed the judicial confirmation process to assume the status of an impoverished constitutional convention. The obvious — and almost certainly unworkable — solution is to craft a sensible constitutional amendment on abortion. While this would not remove abortion completely from judicial purview, it would substantially narrow the debate in the courts, thus lowering the stakes over judicial nominees. Despite all of the vitriol that is expressed on this issue, I am convinced that a substantial majority of Americans could get behind something that might please neither Steve Bainbridge nor Cathy Young, but would lead to greater domestic harmony on this issue. Until we do that, abortion politics will continue to dominate our judicial selection process to our collective detriment.

Cross-posted on Conglomerate.

57 comments for “Religious Bigotry & Judicial Nominations

  1. John H
    April 26, 2005 at 2:24 am

    I’m a token liberal who wants to wretch every time I hear the phrase “activist judges” and who stands in shock and awe at how conservatives have managed to hijack the word “values” and apply it to only what they believe.

    That little rant aside, I do see a bit of a double-standard in holding up judicial nominations based on beliefs about abortion when those beliefs stem from religion. It seems unfairly dismissive, as if conservatives are being treated like they are unrefined swine, a remnant of a dead culture that just never saw the light and now has no business in important positions. It’s no more fair than attacking the other side for not being people of faith.

  2. Derek
    April 26, 2005 at 2:57 am

    All Bush should have to do is compromise with the Democrats (“I’ll nominate this pro-abortion candidate if you approve this one who is anti-abortion”) or find judicial candidates who are more politically neutral.

    So it seems to be an over-hyped non-issue.

  3. Elisabeth
    April 26, 2005 at 6:31 am

    Since this seems to be morphing into a discussion on abortion, isn’t the issue whether or not we want the 50 separate states to have 50 different standards allowing or disallowing abortion? Certainly states such as California and NY would pass legislation allowing abortions, while women in Utah and other conservative states would not have access to abortion.

    I may be wrong, but I think the broader issue is that the American people have become confused on the abortion issue, which may play into the confusion surrounding the judicial nominating process. No amount of political lobbying or vetting of judges will turn back the clock on legalizing abortion in the U.S. For the record, I’m against abortion, but I think it’s unfortunate abortion has become a “litmus test” for approving judges. Justice Blackmun, appointed by Nixon and the primary author of Roe v. Wade, is a perfect example of a judge passing the litmus tests of the day, but adopting much more liberal views on the bench.

    David Brooks in the NY Times had a great article about this issue a few days ago. I agree that some people might feel disenfranchised by the US Supreme Court rulings on abortion, but I’d venture a guess that the silent majority are relieved to have this issue “settled” by the Court and not by individual states.

    To the issue at hand, I find it embarrassing that our elected senators and representatives are squabbling so publicly and virulently over judicial appointments. It’s obvious that both Democrats and Republicans are using judicial appointments as a political tool, and jeopardizing the efficient functioning of the judicial system in the process. Let’s hope Senator Reid’s compromise paves the way for cooler heads to prevail.

  4. April 26, 2005 at 7:48 am

    It seems to me too simplistic to relegate the arguement to one on abortion alone. While I am a devout conservative, to my understanding all but 10 of Bush’s nominees have actually been seated. Surely in that mix there have been those opposed to abortion. So the bigger question, one to which I do not presently have an answer, must be, what are the common threads to the opposition of these 10 outside the abortion issue?

  5. April 26, 2005 at 8:11 am

    Okay, I stand ammended- somewhat. My wife, a political junkie par excellence, has set me straight, at least as she sees it.

    Primarily, yes, the argument on a appelate and supreme court level seems to be centered around the abortion issue. But more than that, it is centered around the idea that liberals want judges who will have a loose interpretation of the law generally speaking, not just on the abortion issue, but on all “civil rights” issues. Abortion just stands out as the foremost “cause”.

    On the other hand, conservatives tend more toward a stricter interpretation of the law based on the directions of the founders.

    I believe it was either Ken Hamblin or Walter Williams who summed it up this way: Liberals see the constitution as a living document, while conservatives see it as a fixed document. Comparing it to the rules of playing poker (perhaps a bad analogy considering Pres. Hinckley’s recent talk), would you want to sit down and put all your money on a game whose rules are “living” and can be changed at the whim of the participants, or a game whose rules are hard and fixed?

    Conservatives and religious “zealots” tend to see rules and commandments as being fixed; laws to which we must conform our lives. On the other hand, liberals don’t want to be fettered by laws that bind them to a proscribed conduct, but rather laws that can be changed if today they decide they want to have sex without consequence to themselves, for example.

    Slowly, this thinking will lead to anarchy, where anyone who believes they should be allowed to act however they wish will simply go judge hunting until they find one that agrees with their particular point of view, and then be made free by the swing of the gavel to act out against the common good of the union.

    Because conservatives tend to be more religiously inclined, the argument naturally absorbs the religious debate. However, just as liberals seemed steeped in the religion of secularism, and demand to be heard and have their will imposed, conservative religious types must stand as firm and undaunting, and not step down from the fight.

  6. Jonathan Green
    April 26, 2005 at 8:14 am

    Gordon, I don’t think that not getting ten judges confirmed is unprecedented. I recall a good number of Clinton appointees not coming before the full Senate for a vote. Why does the graph at the link you provide only address circuit court appointments?

    I think religious intolerance is irrelevant to this debate except in its use as a smoke screen by one side. I haven’t seen complaints that Bush is nominating people of a particular religious stripe, but rather that he’s pushing the nominations of people with agendas of many kinds that are vigorously opposed by Democrats, and who have a record of judicial misbehavior. Abortion is only one of several issues I’ve seen raised, and not even the most prominent one.

    And isn’t the unacknowledged elephant in your post the Senate minority leader? He’s as much a person of faith as you or me, and he’s leading the opposition to a limited number of judicial nominations. Religion is not the issue here, but religion is being misused by one side to cover up the fact that they are in the process of abandoning Senate tradition.

  7. Matt Evans
    April 26, 2005 at 9:00 am

    I agree with those who’ve said that abortion isn’t the only issue that limits the participation of serious Catholics and other christians. A person’s views about other controversial issues (issues that, in times when most Americans took religion more seriously, weren’t controversial), like prayer at graduation ceremonies, public displays of the Ten Commandments, pornography, sex education, the pledge of allegiance, Christmas displays, “In God We Trust,” and gay marriage, are all highly correllated with a person’s religiosity.

    This is why, unlike any other period in American history, the survey question that best predicted a person’s vote in the 2000 and 2004 presidential elections was the frequency of their church attendance. Religion is becoming the new race and social class.

    How surprised is anyone that only a very small percentage of supporters of Americans United for the Separation of Church and State actually attend church?

  8. Greg
    April 26, 2005 at 9:29 am

    “Religion is becoming the new race and social class.”

    Matt, your conclusion that religion is replacing race or class as the primary factor determining American voting patterns is myopic: two data points are cause for more observation–and a trend might be developing–but they hardly constitute a pattern. Moreover, hard examination of pollling data–see any of several issues of the American Political Science Review or its companion journal, Perspectives on Politics (the two primary journals of the American Political Science Association) since the last election–reveals that social class is still a useful predictor of voting behavior and that race is as significant as ever.

    How surprised is anyone that only a very small percentage of black Southern Baptists (some the country’s most regular church attendees) are supporters of Southern conservative Republicans?

  9. HL Rogers
    April 26, 2005 at 9:41 am

    I think Matt over-emphasizes the division of the religion issue. If religion was such a divider you wouldn’t find strong people of faith on both sides of the aisle as you do. And Matt I believe the church attendence numbers you refer to are very skewed. I remember looking at the study and response at the time that showed the numbers were massaged (but my response on that is as un-substantiated as Matt’s initial claim). However, very religiously devout people often come out very differently on most “values” issues. In fact, the only religion that really comes out on the conservative side of all the “values” issues as a block (abortion, homosexuality, separation of church and state, etc.) are evangelicals (thus the picketing we get at conference every 6 months).

    I think the issue is far more complex and provides a window into economic and social beliefs better than it does into religious beliefs. Religiosity is still at the forefront of the American political life no matter what your party–we have never had a non-church attending president (granted some presidents have used so-called belief in their churches more out of political gain than real faith–like Clinton and W.) but the real litmus test is that if you want to win a national election you have to at least claim religiosity and I don’t see that changing any time soon.

  10. April 26, 2005 at 9:44 am

    For those who are interested in the details on judicial nominees, the DOJ maintains this website. Kelly, you are right about the numbers, but remember that those numbers represent about 5% of the federal appellate court judges and a much larger percentage of President Bush’s total nominees. Also, remember that circuit court judges are the most likely candidates for Supreme Court nomination, so there is a lot of posturing going on here in anticipating of vacancies on the high court.

    Jonathan, why does the chart show only circuit court judges? It’s not my chart, but I could offer two possible explanations. The cynical explanation is that showing only circuit court nominees makes the chart more dramatic. The more charitable explanation is that circuit court nominees are the focus of the controversy, so they are the only ones that matter for this debate. There are, of course, a number of district court nominees still pending, but they seem to be moving through more easily.

  11. April 26, 2005 at 10:17 am

    Derek: Remind me to remind you of your response when a liberal Democrat is elected President and is having trouble with his nominees to judicial posts.

  12. April 26, 2005 at 10:31 am

    HL, are you claiming that Bush was not religious before he ran for office, or simply that he is now exploiting his religion for political gain? If it’s the former, you’re the first person I’ve heard make the claim. Any support?

  13. danithew
    April 26, 2005 at 10:45 am

    I think that secular liberal bias (and even bigotry) against religious conservatives is a real problem. Too often secular liberals imply that religious conservatives are idiots or express the idea that religion and religious people should recuse themselves from the political process. I don’t even agree with many things that the stereotypical religious right believes in. But as long as religious conservatives respect a free and democratic process I fully support their equal right to political influence.

    Regardless of the results of the debate over judicial appointees, I’m glad this problem is being discussed and challenged.

    Conservatives need to be careful though. If they alter the filibuster rules to their advantage and a future Democratic majority comes into political existence, then conservatives had better be ready to reap the whirlwind.

  14. Todd Lundell
    April 26, 2005 at 11:02 am

    Isn’t there a great irony to the situation described in this post? Conservative judges are typically skeptical of “disparate impact” theories and want to require direct proof of discriminatory intent before crying foul under the constitution or anti-discrimination statutes. Now “disparate impact” is being wielded in defense of those same judges. Interesting, but sort of silly. And this coming from someone who lines up pretty far to the right on issues involving the courts.

  15. April 26, 2005 at 11:11 am

    Todd, Cathy Young made the same point in response to Bainbridge’s post. I think it isn’t entirely fair. “Disparate impact” as a legal standard of liability can be frustratingly vague, even if the intuition that animates the standard is widely accepted as valid. Steve Bainbridge was appealing to the underlying fairness intuitions, not attempting to articulate a legal claim.

  16. Eric S
    April 26, 2005 at 11:14 am


    The question about why district court judges are not included in the analysis on the DalyThoughts site linked here is addressed in the comments on that page, numbers 78 onward. Basically, they are not included because it is the Circuit Court judges that are considered most important by both parties. These are more important than district court nominations for at least three reasons:
    1. They are feeders for the Supreme Court. The best way for the Dems to keep Janice Rogers Brown off the Supreme Court is to keep her off the DC Circuit Court of Appeals;
    2. Circuit Courts are like mini-Supreme Courts. When they act, their opinions are binding law over the geographic portion of the country over which they have jurisdiction. Their rulings are binding precedent over all lower courts until and unless the Supreme Court overturns them;
    3. District courts deal more frequently with mundane, day-to-day issues, whereas the Circuit Courts have more opportunities to deal with complex constitutional questions and, therefore, to establish precedent on these high-profile issues of the day. A wayward district court judge can easily and quickly be slapped down by an appellate court. For an appellate decision to be reveresd requires action by the US Supreme Court.

  17. Kaimi
    April 26, 2005 at 11:23 am

    Over at Volokh, there is some discussion of this. Juan Non-Volokh suggests that at least some of these judges are being blocked by individual cases of political payback.

    For example, Bush’s Michigan nominees are being blocked because the Republican congress blocked Clinton’s Michigan nominees. It’s pure tit-for-tat — according to Non-Volokh, Democrats have said that they won’t budge unless Bush renominates the blocked Clinton nominees.

  18. April 26, 2005 at 11:30 am

    It is related to Gordon’s original post, so I thought I would throw this article from the Jan/Feb Atlantic Monthly out.

    He makes a decent case (as a liberal) for calling the right’s bluff by overturning Roe and letting the legislative institutions tackle it. He surmises that the Right wouldn’t survive the criminalization of abortion and consequently nuetralize one of their major ideological hammers. Interesting stuff.

  19. HL Rogers
    April 26, 2005 at 12:06 pm

    Ryan 12: I am asserting both. While I don’t question Bush’s personal religious conviction I do find it very coincidental that he “found” religion and settled down right when he decided to enter elective politics. Add to that his very easy flip-flop on abortion in ’79-’80 (along with his father to get on the Reagen ticket) and I think there is plenty there to at least assert that Bush has used and continues to use religion for his political benefit, whether or not his personalbeliefs actually line up.

    Sorry for the threadjack.

    I think the other problem with asserting that conservatives use of “disparate impact” theory is silly, is the fact that unlike judges (to some extent at least) politicians on both sides are happy to grab any theory that gives them political traction. Thus, if you can put civil rights on its head and use the same rhetoric for religion, which strengthens your base and hopefully reaches out to democrats familiar with the civil rights language, you will latch right on. This does not lead to legal inconsistency but instead, in the hopes of the politicians, leads to broad base organization. Thus, one can easily be against disparate impact as a legal theory but embrace it as a popular political tactic without being inconsistent. Of course, the problems come when the political enters the legal, as it often does.

  20. Matt Evans
    April 26, 2005 at 12:07 pm

    Greg and HL,

    Church attendance was a better predictor of voter preference in the 2000 and 2004 election than race, social class, or any other demographic category. That doesn’t mean that race and social class have no predictive value for voter choice, only that it’s less than church attendance. I don’t believe Greg is right to suggest this trend is new or temporary, either; those antagonistic to religion predominantly make their nests in the Democratic party, and as the authors of “Our Secularist Democratic Party” explain, the culture wars have only exacerbated already existing divisions. The culture war won’t end soon — neither Hollywood and the ACLU or the churches and Boy Scouts are likely to lay down their arms — and it’s inevitable that the culture war spills into politics. Hillary and some other Democratic leaders have shown that they might “Sister Soulja” the anti-religion wing of the Democratic party, but it’s impossible to know how that will play out.

    (HL, there are devout religious people in both parties, yes, but that doesn’t mean that religiously devout people don’t significantly favor one party.)

  21. Frank McIntyre
    April 26, 2005 at 12:15 pm

    Disparate impact strikes me a as a standard ripe for abuse.

  22. Nate Oman
    April 26, 2005 at 12:29 pm

    A Note on Senate Traditions: Using a point of order followed by an appeal of the decision of the chair to break a filibuster (the actual procedural mechanism behind the so-called nuclear option) is not unprecedented. Indeed, the tactic was developed by then-majority leader Robert Byrd in the 1970s to overcome the obstructionist use of the filibuster by a Senator Allen of (I believe) Alabama. It is true that the tactic has never been used to break a filibuster of a judicial nominee, but then a judicial nominee has never been filibustered before.

  23. Nate Oman
    April 26, 2005 at 12:31 pm

    Point of clarification: I don’t know if Byrd actually used the tactic or simply threatened to use it. The mechanism, however, is his brain child.

  24. Todd Lundell
    April 26, 2005 at 12:56 pm

    HL, your post is precisely what I think is a little silly about using “disparate impact” theory to defend conservative judges. If you don’t truly believe policies that create disparate impacts are discriminatory, using such a theory as a political tool to “broaden your base” is, I think, inconsistent.

    Gordon, you may be right that some conservatives (especially in academia) accept the disparate impact principle as a matter of fairness across the board and are against disparate impacts as a legal standard only because it is frustratingly vague, but I think the concerns generally run deeper. Even assuming that we could agree on a clear standard, many conservative judges (and I would guess the ones being fillibustered in the Senate would likely fall into this category) would still argue that fairness does not require one to abandon otherwise justifiable beliefs or policies simply because of their incidental impact on some particular group.

    I don’t think Democrats need to confirm conservative judges with whom they disagree simply because not doing so would have some disparate impact on those who espouse strongly held religious beliefs. And I think most of the conservative Senators making this argument are being disingenuous. Its a useful tool right now, but if told their policies in another context have a disparate impact on racial minorities, other religious minorities, or (heaven forbid) gays, they don’t seem to have the same concerns. I just don’t think the Senators buy into the fairness rationale they are espousing for the short-term political gain of increasing control of the courts.

  25. Nate Oman
    April 26, 2005 at 12:59 pm

    Kiami: Thanks! I didn’t know about Fortas. If only LBJ had had Byrd as majority leader!

  26. Todd Lundell
    April 26, 2005 at 1:00 pm

    Or worse, these conservative senators believe in the fairness rationale only when they find themselves as part of the disparately impacted minority.

  27. Nate Oman
    April 26, 2005 at 1:08 pm

    Greg: My understanding of the religious activity–>GOP voting thesis (unless you are a black evangelical) is that the data goes back for quite a while. I remember David Magleby discussing the link when I was in college. One may argue that it is unfortunate that the majority of religiously observant voters favor a single party (at least in national elections), that it is evidence of illegitimate religious manipulation, misinformation, etc, but I think that you will be hard pressed to make a case that it is not emperically happening.

  28. Nate Oman
    April 26, 2005 at 1:14 pm

    On the disparate impact argument, it seems to me that the hypocrisy goes both ways, with those who are normally horrified by rules producing a disparate impact throwing any scruples to the wind when (1) the rule produces a politically desirable outcome; and, (2) the disparate impact suggests that they — rather than others — harbor illegitimate motives etc.

    For the record, however, I agree that the argument is rather dumb.

    Let me make a wild claim here: The abortion debates over judicial nominees don’t matter all that much. Under current law, states can regulate abortion much more than they seem to be interested in doing, and despite the we-must-save-the-right-to-abortion-from-regulation-by-neanderthal-red-states hypervennilating by abortion rights goups, that battle has already been largely lost, as under Casey — as I read it — states are free to ban abortion (provided health exceptions) after the point of fetal viability. In other words, the battle is actually being fought out on a fairly narrow field that ultimately probably doesn’t matter much in terms of practical results. Of course, the politicians on both sides have an interest in fanning the flames to get out the base (and their donations). Such is democracy.

  29. Matt Evans
    April 26, 2005 at 1:21 pm

    Todd and everyone else complaining about disparate impact,

    The point of the disparate impact claim isn’t to suggest that everyone should have an equal chance of being selected to be a federal judge, but rather an implicit argument against the particular litmus tests being used. Most people are uncomfortable with a policy that disproportionately disqualifies devout Christians not because they think a judge’s religious and moral views are irrelevant but because they believe devout Christians are good people, so we should be suspicious of the litmus tests that disproportionately disqualify good people.

    To state it another way, if the litmus test had a disparate impact on members of civic clubs, like the Elks and Lions, people would be upset not because they want a policy that is neutral with regards to membership in civic clubs, but because they believe being an active Elk or Lion is a good thing, and representative of precisely the kind of character we would want our judges to demonstrate.

  30. Matt Evans
    April 26, 2005 at 1:24 pm

    Nate, I think you’re right about circuit courts having little role in the abortion controversy, but the circuit courts are big players in other cultural battles for which abortion is a convenient shorthand.

  31. Elisabeth
    April 26, 2005 at 1:24 pm

    In response to J. Stapley’s post # 18 – what I find most strange about the abortion issue is that a majority of Americans have fairly consistently supported some variation of abortion rights ever since Roe v. Wade was decided.

    So if we defer to the state legislatures to enact abortion laws (which, I’m assuming most of these judicial nominees would do), wouldn’t the elected representatives in these legislatures reflect the will of the people and allow abortion? I can understand how people believe the U.S. Supreme Court has unfairly (and illegally) usurped legislative power in this area, but I think the results would generally be the same, i.e., abortion would be legal in most states.

    Anyway, it’s unfortunate that abortion rights has been the single issue many Americans use to define themselves politically, especially because there is so much common ground on this issue that is ignored in favor of political grandstanding.

  32. Nate Oman
    April 26, 2005 at 1:36 pm

    Elisabeth: To a large extent, we are already living in the world that you imagine. Under current law, most states could regulate or ban many more abortions than they currently do. I may be wrong about this, of course, as one might argue that whatever the state of the abortion rights jurisprudence in se that the courts nevertheless will find doctrinal devices not directly related to abortion — e.g. the vagueness argument in the PBA cases — to invalidate restrictive abortion laws. On the other hand, I think that under the current constitutional doctrine in theory a state ought to be able to pass a law saying, “subject to exceptions where the life or health of the mother are threatened, performaing an abortion after the point of fetal viability (hold legislative hearings and pick a date here) shall be a felony.” To my knowledge, no state has yet taken up the Court on its offer in Casey, although I freely admit that abortion law is not my area, so I could be wrong on this.

  33. Todd Lundell
    April 26, 2005 at 1:36 pm

    Matt: “Most people are uncomfortable with a policy that disproportionately disqualifies devout Christians not because they think a judge’s religious and moral views are irrelevant but because they believe devout Christians are good people.”

    Both of us are probably throwing the “most people” defense around much more than is justified. Nonetheless, I disagree with that claim. I just don’t think most people are “uncomfortable” with Democrats affirming their position regarding abortion even if that view “disqualifies” otherwise good candidates for judges. From my experience in law school, most liberal accademics are “good people,” but my political choices would certainly disqualify them from becoming a judge. I am not uncomfortable with that in any way.

    Nate, I think you are mostly right with regard to the abortion fight. Although I think the continuing debate on that issue is symbolic of the broader issue of judicial imposition of moral norms. This is certainly an ongoing concern on both sides and the real future battleground in this regard is gay marriage. So, I don’t think both sides are simply “fanning the flames to get out the base.”

  34. Nate Oman
    April 26, 2005 at 1:45 pm

    Todd: If what is being selected for is not really opinions about abortion per se, but rather opinions about the role of judges in the culture wars, then it seems to me that the Dems and others OUGHT to adopt a rule of opposing judicial nominees with strong religious views since those views are probably as good a signal as anything as to one’s attitudes in the culture wars. If this is the case, then it seems to me that this dynamic, coupled with the disparate impact of an aborition rights litmus test means that it is not so implausible to suppose that Dems have chosen the litmust test that they have precisely because it will tend to disqualify those with conservative theological opinions. If one accepts my position with regard to abortion jurisprudence — ie that in practical terms circuit court judges simply don’t matter all that much in this game — then why not assume the worst about the motives of Schumer et al.

    This raises the really interesting question, namely whether or not selecting against people because of their theological views is actually illegitimate. It seems to me that rather than accusing religious conservatives of hypocrisy on the issue of disparate impact, liberals ought to claim that there is a fundamental contradiction between (1) claiming that theological opinions may legitimately inform public policy decisions; and, (2) claiming that one cannot be denied public office because of those theological opinions. Why not simply admit that what is happening is exclusion on religious grounds, but that one is justified in doing so?

  35. HL Rogers
    April 26, 2005 at 1:55 pm

    Nate 28,
    My understanding is that the numbers really don’t support the claim that most church goers are republican. As I recall the only numbers bandied about the last time this came up were from a conservative think tank with dubious methods. I may be wrong (after all I never heard Magelby speak on this issue and church attendece correlated to politcal party should be a very easy thing to measure so the numbers must be out there in mass). I’ll have to hunt around for some _real_ numbers. :-) That said, Church attendence is only one of many religiosity indicators. Also, much of politics is a race to the national arena. Meaning partisan politcs can be very demographically segmented and get rather extreme to either side in certain pockets (San Francisco/Mississippi). But in the end the parties argue for a national audience every four years and America always demands a religious tone to this debate. I think that fact is an indicator that religiosity exists prominently on both sides. Perhaps we can never quantify which side is more religious but if we can, I don’t think the evangelically defined “values” is a good barometer (after all we as Mormons only fair so-so with their schema).

  36. Todd Lundell
    April 26, 2005 at 2:06 pm

    Nate, I think you make a valid and interesting point. And I think Schumer et al. are probably doing precisely what you say, but without the “theological” component. In other words, one could easily say that “Dems have chosen the litmust test that they have precisely because it will tend to disqualify those with conservative * * * opinions” and omit the “theological.” I don’t think this is “assuming the worst” about their motives because I don’t think they are attacking religious beliefs as religious beliefs, but rather attacking those beliefs as they would any other belief.

    I don’t think Dems or anyone else is unjustified in arguing that the content of one’s religious beliefs matter in political debate – even though those arguments will necessarily have a disparate impact on certain religious groups. True discrimination would be excluding someone from office because his opinions were religious, but that is a far cry from excluding them because the content of their religious belief is objectionable.

  37. Kaimi
    April 26, 2005 at 2:11 pm


    This is, you realize, the identical concern raised by opponents of “death-qualified” juries. That is, if you make sure that the jury doesn’t have anyone morally opposed to capital punishment (death-qualified), you also get a lot of pernicious side effects.

  38. Kaimi
    April 26, 2005 at 2:12 pm

    By the way, another news article, stating that Harry Reid offered a compromise (to allow a vote on two of the Michigan nominees) and Frist turned it down, insisting on an all-or-nothing package.

  39. Nate Oman
    April 26, 2005 at 2:14 pm

    HL: I am trying to make a narrower claim. I don’t think deny that there is religiousity in both parties. Nor do I claim that religious people self-identify as Republicans. Rather, my claim is simply that the great majority of those who regularlly attend religious services vote Republican in presidential elections and have done so for several cycles.

  40. HL Rogers
    April 26, 2005 at 2:19 pm

    Nate: the majority of religiously observant voters favor a single party

    If by _religiously observant_ you simply meant church goers then excuse my bombastic retort. However, these numbers are most commonly used to prove that republicans are religous, while democrats are not. I think this claim is both false and hard to quantify–the latter being the reason I feel comfortable claiming it is false (its like the social sciences: how can my assertion be wrong when you can’t prove or disprove it :))

  41. Matt Evans
    April 26, 2005 at 2:20 pm

    HL, I recommend you read the 2002 paper that covers some of this ground, Our secularist Democratic party.

    Todd, I think the rationale for the Democratic senators strategy, and why they would use abortion as a proxy for a host of issues, is encapsulated well in the closing paragraph of the essay I recommended to HL:

    As the manifold displays of public piety in the aftermath of September 11 demonstrate, there is a reservoir of support for shared affirmations in the public square of America’s historic relationship with God. Media elites are no doubt aware of American religiosity and implicitly understand the political ramifications of characterizing the Democrats as the partisan home of secularism. Perhaps it is for this reason more than any other that we do not hear in election-night analyses and postmortems that Democratic candidates have shorn up their base among the unchurched, atheists, and agnostics, in addition to the ritualistic accounts and warnings about how well Republicans are doing with evangelicals or the Christian Right.

  42. Nate Oman
    April 26, 2005 at 2:22 pm

    Todd: I suppose that the question is whether or not abortion is a signal that weeds out those with “bad” policy preferences, or if abortion is a signal for consevative religious beliefs which is a signal for “bad” policy preferences. I suspect that in actual practice the issues get conflated, and the goal of Schumer is to keep those religious wackos for imposing a theocracy on the rest of us, etc. etc.

  43. Nate Oman
    April 26, 2005 at 2:24 pm

    HL: Fair enough, but frankly it seems to me like you are shooting the messenger. Dismissing the disparity in voting behavior by church-attenders as a smoke screen created by the vast right-wing conspiracy seems to be rather like sticking your head in the sand.

  44. Elisabeth
    April 26, 2005 at 2:54 pm

    Nate (and anyone else following the abortion law semi-threadjack),

    State legislatures have actually been very active after Casey with respect to considering abortion bans (along with laws requiring waiting periods, parental consent, and laws allowing health care providers to refuse to participate in abortions). In fact, South Dakota passed a law in 2004 that defined life as beginning at conception, and would have effectively banned abortion in that state (pre and post viability). The law was vetoed by the Republican governor.

    In my very cynical opinion, I think that state legislators introducing abortion bans and other legislation that is clearly unconstitutional are passing the buck so to speak, because it’s easier to blame activist judges who must strike down the overly restrictive laws than to say no to powerful interest groups and political contributors.

    So, I agree with you and Todd Lundell that the abortion debate is largely symbolic – which is why I find it so unfortunate that abortion is such a polarizing issue.

  45. April 26, 2005 at 3:06 pm

    I find the whole “symbolic issues” problem of the last decade or so deeply troubling. If only because it distracts the voters from the real issues (that as often as not both parties are avoiding). Sometimes the symbolic laws do affect people, such as the so-called assault weapons ban. (So called since it didn’t actually ban any assault weapons) But the Republicans are just as bad – especially at the state level. Last year there were a host of symbolic abortion laws. This year things were better, primarily because the economy rebounded and there were all sorts of funding issues the politicians could focus on.

    But I truly believe that the recent focus on judges is designed primarily to take focus off key Republican issues which, as often as not, Republicans are ignoring or failing at. Of course Democrats are doing no better.

  46. Jonathan Green
    April 26, 2005 at 3:24 pm

    Nate, Todd, between the two of you, you’ve referred to the Senate Democrats metonymically by referring to Chuck Schumer three times now. That’s an odd shift, since the actualy minority leader who’s leading the opposition would seem to be of some relevance.

    Nate, you keep speculating about religious beliefs and other litmus tests functioning as stand-ins for positions that are undesirable to Democrats. But judges state in writing exactly what their positions are when they write opinions, and if there is any uncertainty about it, then senators can question the nominee directly in the confirmation hearing. A stand-in test for undesirable policies seems pretty much beside the point. I still don’t see that the religiosity or irreligiosity of the disputed nominees has anything to do with it.

  47. Matt Evans
    April 26, 2005 at 3:35 pm

    Elisabeth and Nate, Utah rewrote their abortion laws after Casey but they were struck down by the 10th circuit.

  48. Elisabeth
    April 26, 2005 at 3:59 pm

    Hi, Matt-

    Are you referring to Utah Women’s Clinic v. Walker? This is the pending case over the bill enacted as an amendment to the existing Utah law which bans abortion procedures performed as early as the 12th week of pregnancy (and effectively eliminates the “health” exceptions).

    This bill is currently unenforceable due to a court-issued preliminary injunction while the case wends its way through the courts (not sure where the case is now – I checked on Westlaw, but couldn’t find it).

  49. Nate Oman
    April 26, 2005 at 3:59 pm

    Jonathan: My understanding is that some of the nominees have been judges and some have not. In any case, even those nominees that are not judges will not have decided cases on many if not most of the issues that are on the minds of the Senators. For example, I worked for a judge who had been on the federal bench for 18 years. In that time he had not heard a single case relating to abortion. A good example here might be David Souter, who was on the Supreme Court of New Hampshire for many years prior to being elevated to the Supreme Court by Bush I. He turned out to be a bit of a surprise for the conservatives in the Bush I administration who worked to get him confirmed. Although some conservative attorneys at the DOJ had read between the lines of his New Hampshire opinions and expressed concern to the White House, the bottom line was that he simply hadn’t ruled on any of the sorts of hot button constitutional issues that get people’s ideological juices flowing about the federal judiciary. The same is true, I suspect, of most judges. Accordingly, Senators are intensely interested in the idealogical opinions of potential nominees and even when those nominees have been on the bench for a while will look to other sources for any evidence as to pre-dispositions etc.

  50. Nate Oman
    April 26, 2005 at 4:04 pm

    “That’s an odd shift, since the actualy minority leader who’s leading the opposition would seem to be of some relevance.”

    Perhaps, but Schumer was beating the fillibuster drum in the Judiciary Committee before Reid took the issue up. Mind you, I don’t think that there is anything inconsistent about Harry Reid, a Mormon, being suspicious of conservative protestants or conservative catholics. I’m a Mormon, and frankly, I am suspicious of conservative protestants.

  51. Nate Oman
    April 26, 2005 at 4:07 pm

    Jonathan: A final point. Judges do not state in their opinions exactly what their positions are. Rather, the purpose of opinions is to explain the particular outcome in a particular case. It would be a grave mistake to view judicial opinions as ideological manifestos, although admittedly there are opinions that take this form. (Blackmun — or perhaps just his clerks — was particularlly fond of these, afterall the man yielded to no one in his horror at the carnage on our highways!)

  52. Matt Evans
    April 26, 2005 at 4:10 pm

    Hi Elisabeth, I was referring to the cases from the 1990s:

    Jane L. v. Bangerter, 809 F.Supp 865 (D. Utah 1992), 102 F.3d 1112 (10th Cir. 1996); Utah Women’s Clinic v. Leavitt, 844 F.Supp. 1482 (D. Utah 1994), 75 F.3d 564 (10th Cir. 1995); and Utah Women’s Clinic v. Graham, 892 F.Supp. 1379 (D. Utah 1995).

  53. HL Rogers
    April 26, 2005 at 5:00 pm

    Nate 44: Dismissing the disparity in voting behavior by church-attenders as a smoke screen created by the vast right-wing conspiracy seems to be rather like sticking your head in the sand.

    Fortunately I enjoy both right wing conspiracies and sand. Oh and as a side benefit I enjoy Nate rhetoric. :)

  54. JCP
    April 26, 2005 at 5:10 pm

    Nate Oman:

    Wouldn’t it be fair to say that SC justices are “stating their positions,” given that they have no superior court or body of law that is controlling in any sense? Lower court judges are obviously quite different. Perhaps “ideological manifesto” is too strong a term, but it strikes me as not so far off for the admittedly smaller set of SC justices.

  55. yossarian
    April 29, 2005 at 12:10 am

    Nate #51-
    I am not just suspicious of conservative protestants, I am terrified of them. As a former resident of Alabama to know them is to fear them.

  56. Fraggle
    May 1, 2005 at 9:03 pm

    — From #5
    I believe it was either Ken Hamblin or Walter Williams who summed it up this way: Liberals see the constitution as a living document, while conservatives see it as a fixed document.

    Maybe you have to be American to get this, but I’ve seen this idea mentioned before and I don’t get it. In what way is the Constitution not already a living document, as it can be textually altered?

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