by Matt Barr

Only the Young can say

Writing of "Justice Sunday," Cathy Young condemns a "grotesque religio-political circus," Prof. Bainbridge cites "disparate impact" and Young answers you're inconsistent!! Have you noticed that no one ever comes back at a member of the American left and tries to play gotcha by telling them whatever they've just said means, aha!, they're not really liberal? Is that because American liberals are remarkably consistent, or does it mean American liberalism is so squishy and (I'm really sorry) relativist that it can accommodate any fool thing? E.g: filibusters are categorically bad, but blocking Bush's nominees is more important, or something.

But back to Young. The non-neener-neener part of her Hit & Run reply says in part:

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).

Lower federal courts (and state courts, for that matter) have an obligation to adhere to Supreme Court precedent. A Circuit Court can't overrule the Supreme Court, only the Supreme Court can do that. So, as a matter of fact (is this a Sullivan award hopeful -- "someone us[ing] an example of something true as evidence that its proponent is completely insane"? I think it may be!), a lower federal court nominee's personal view of the constitutionality of abortion rights is completely irrelevant to their job.

What screening out anti-abortion "zealots" does is assume that jurists who oppose abortion -- often on religious grounds -- are incapable of putting their fidelity to the constitution ahead of their personal proclivities. In Young's estimation, that probably makes it a "job related" concern, but this of course is silly. If Senators opposed the nomination of a judge because she was pro-abortion, Democrats would go all Hill v. Colorado on their ass. If Republicans opposed an African American nominee because he was pro-affirmative action, I think race might come up on the Democratic side. Just a cynical hunch.

Young again:

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

This is really the point, isn't it? Young likely believes that pro-life "zealotry" (or else why call it that? Are there anti-unreasonable search and seizure "zealots"?) is a "particular belief [that] ought to disqualify" a nominee for the federal bench.

I continue to be bemused that purported libertarians look to the federal government as the sole and last guarantor of their rights. Seat a federal judge who personally opposes abortion and next thing you know abortion will be outlawed everywhere. The reversal of Roe v. Wade would force libertarians to try and persuade the locals abortion should still be available, and you know libertarians and people. Still, a lower federal court is the safest place for a jurist who opposes abortion, if you're pro-Roe: No man or woman in America is more impotent in the abortion debate than a lower federal court judge.

UPDATE: Changed a confusing gay marriage example to affirmative action. Sorry for the misfire.

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