UPDATE: Stephen has a further response, but I think Cathy is still correct here.
Stephen Bainbridge writes:
I was persuaded by [Stop the Bleating]'s take on this issue:
If Schumer truly does intend to create a test for judges on the basis of their deeply held moral beliefs about abortion, that test arguably isn't job-related. I would argue that since judges aren't paid to enact their personal preferences — moral or otherwise — into law, and many of them respect their limited role in our system, a judge's personal moral beliefs should be a concern only if there's some concrete reason to suspect they'll unduly influence the performance of his judicial duties, i.e., if he's likely to substitute his own moral judgment for high quality legal reasoning, or his reasoning is likely to be heavily colored by his personal preferences.
Well, one can argue that; but how persuasive is that argument? Judges do have the power to implement their moral beliefs into law. Obviously, many have exercised this power in the past, and there's little reason to doubt that they'll do it in the future.
Even those judges who try very hard not to let their moral beliefs affect their legal judgments may end up doing it inadvertently. Even if judges sincerely try to be bound by text and original meaning, constitutional text is often not very specific, and the original meaning is often highly ambiguous. Even if they sincerely try to be bound by precedent, the precedents can often be interpreted in different ways, and one's moral beliefs have a tendency to influence which interpretation one chooses. And sometimes the text, original meaning, and precedent, even when interpreted with perfect honesty, leave questions unresolved. At that point, judges have to make up some of the rules, and it's very likely that their moral beliefs will influence that process. You don't have to like this, but that's the reality of how judges operate.
What's more, you can't fire judges. In normal employment, you could argue that the employer should set aside prospective employees' beliefs, so long as the employees agree to follow the rules; then, if the employees show that their moral judgments are interfering with their jobs, they could be fired. (I don't think the employer should have such an obligation, but it's at least a plausible one to impose, given religious accommodation law and religious disparate impact law.) But this won't work for judges: If it turns out that a judge does deliberately or inadvertently let his moral views mold his legal decisions, he can't be removed short of impeachment — which is not a procedure that's likely to be used, or that we'd like to see frequently used.
Consider an analogy: Say that you support the death penalty, and you're the President deciding whether to appoint a judge, a Senator deciding whether to confirm him, or a voter deciding whether to vote for him (if he's a candidate in a state in which judges are elected). The judge is on the record as saying that the death penalty is murder, and that the court decisions upholding it are an abomination; but the judge has a reputation as an honorable man, and he promises not to let his moral judgment influencing his legal decisionmaking.
Would you feel obligated to take him at his word, and ignore his statements of his moral views, since otherwise your decision might have a "disparate impact" on judges who belong to those denominations that oppose the death penalty? Or would you feel that it's at least permissible for you to have reservations about the judge because of those views, regardless of whether those views have a religious foundation (even if you're ultimately willing to set aside those reservations for other reasons)? I think the answer is that such reservations are indeed quite permissible, even if the judge is entirely honorable.
None of this suggests that the filibustering of the judicial candidates is proper; there are all sorts of other plausible arguments against it. I'd like to see the Senate confirm more of President Bush's controversial nominees. But disagreement with a judicial candidate's strong moral views on legally significant topics is not religious bigotry, and can't be faulted on "disparate impact" grounds.
As much as I hate to disagree with my host, I think I have to side with Professor Bainbridge on this one. As I explained some time ago in posts on the nomination of William Pryor, here and here, I think it is fair to say that at least some Democratic Senators -- and some outside interest groups -- have taken the position that an individual who accepts the Catholic Church's teaching on abortion, and who therefore believes that abortion is murder, is unfit for the federal bench. While I would not call this anti-Catholic bigotry, it is quite anti-Catholic in effect. Larry Solum also had some thoughts on the matter here.
I think it is fair to say that at least some Democratic Senators — and some outside interest groups — have taken the position that an individual who accepts the Catholic Church's teaching on abortion, and who therefore believes that abortion is murder, is unfit for the federal bench. While I would not call this anti-Catholic bigotry, it is quite anti-Catholic in effect.
If a group specifically said that it opposed nominees who accept the Catholic Church's teaching on abortion — but not people who are equally anti-abortion but not Catholic — then it would indeed be anti-Catholic bigotry. But I take it that Juan's point is broader still: Any group that opposes nominees who believe abortion is murder, even if they do that without regard to the nominee's religion (or lack of religion), is setting up a test that's "anti-Catholic in effect."
I think, though, that "anti-Catholic in effect" isn't a helpful term here, because "anti-X" generally suggests hostility to Xs, or at least a deliberate desire to exclude Xs as Xs, and not just the adoption of a neutral rule that ends up burdening X. I wouldn't, for instance, call a university's decision to admit students based on high school GPA and SAT scores "anti-black in effect," even if it has the effect of excluding many black applicants (and a higher fraction of those applicants than of Asian or white applicants). Likewise, I don't think that we'd call professional sports teams "anti-woman in effect" simply because their selection criteria lead them to be all-male, unless we thought that the criteria were deliberately stacked against women.
More to the point here, say that President Bush decides that he's tired of anti-death-penalty judges who either vote to strike down the death penalty generally, or undermine it in lots of ways short of striking it down altogether. He says that he will not nominate any appellate or Supreme Court judges who are on the record as being strongly morally opposed to the death penalty. Would we call this "anti-Catholic in effect"?
I don't think so; again, "anti-Catholic" suggests opposition to someone because of his Catholicism. We should reserve the term, which has the connotation of hostility, to situations that do exhibit such hostility. "Has the effect of excluding Catholics / blacks / women" is much more accurate, both in its denotation and its connotation.
UPDATE: I had meant to note this in the original post -- I realize that Catholics are not doctrinally forbidden from supporting the death penalty, but there is, as I understand it, a considerable amount of modern teaching against it. The refusal to nominate judges who support the death penalty thus won't eliminate all Catholics (though neither would the refusal to confirm judges who deeply oppose abortion, since some Catholics are pro-choice, though there they are indeed running up against official church doctrine), but it would have a substantial disparate impact on Catholics, as I understand it. But in any event, one could substitute some other religious group that does oppose, as a matter of doctrine, the death penalty; I believe, for instance, Quakers are such a group -- would one call the policy I discribed "anti-Quaker in effect"?