Steve Bainbridge critiques a Cathy Young column, and Eugene Volokh's approval of it:
My friend and colleague Eugene Volokh endorses a Cathy Young column in which she opines, as Eugene summarizes it, that the Democrat's "political and ideological hostility -- whether that hostility is justified or excessive --" towards pro-life judicial candidates does not amount to "religious bigotry" against devout Catholics or Evangelicals. Maybe. What both of them have overlooked, of course, is the principle of disparate impact.
It is a basic principle of discrimination law that overt evidence of bigotry is not required to find that someone has discriminated. As an HR source explains the relevant legal principles:
Even where an employer is not motivated by discriminatory intent, Title VII prohibits an the employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. ... The plaintiff must prove, generally through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group.
I was literally in the midst of writing essentially the same post when my better half asked to use the computer. Because all things mechanical and -- especially -- electronic hate her (or at least sense weakness in her), I should have known better. The laptop froze while she was trying to login, and the only solution was to kill the power. WordPad has no recovery feature. <sigh>
Professor B makes an excellent point. However, I think both Eugene and Young are making a more limited claim than he acknowledges. I don't think either of them means to assert that the Democrats' position -- to wit, that those with deeply held beliefs about the immorality of abortion -- won't have a disproportionate effect on religious conservatives. Rather, I think their claim is merely that the Democrats' opposition to such candidates is not about religion per se. And I suspect they're right. I believe the Democrats would be just as hostile to a liberal atheist who opposed abortion on grounds of deeply held, non-religious, moral beliefs -- such as Nat Hentoff -- as they are to those who oppose it on the basis of deeply held religious beliefs. If I am right, then their opposition is not about religion per se would seem to be based on genuine differences over public policy and constitutional interpretation, and the "disparate impact" is incidental. That doesn't make it OK, but I think the term "religious bigotry" implies something else.
That said, I think it's very telling that liberals cannot conceive of a judge being able to separate his personal policy preferences from his judicial decisionmaking. Sounds like a classic case of projection to me.
UPDATE: Cathy Young responds to Bainbridge here. Her response is pretty strong, but there's one point on which I'd quibble. She says:
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).
The problem is that I don't think anyone is accusing the Democrats of being anti-religious bigots because they oppose candidates on the basis of their legal positions vis-a-vis abortion. Rather, the perception is that they're opposing candidates based on their moral positions vis-a-vis abortion -- moral positions that are in most cases expressions of religious faith.
Consider these quotes from several Democratic members of the Senate Judiciary Committee during a hearing on the nomination of Bill Pryor:
[I[n General Pryor's case his beliefs are so well known, so deeply held, that it is very hard to believe, very hard to believe that they are not going to deeply influence the way he comes about saying, "I will follow the law." And that would be true of anybody who had very, very deeply held views. -- Chuck Schumer (quoted by Orin Hatch).
I for one believe that a judge can be pro-life, yet be fair, balanced, and uphold a woman's right to choose, but for a judge to set aside his or her personal view, the commitment to the rule of law must clearly supersede his or her personal agenda. . . . But based on the comments Attorney General Pryor has made on this subject, I have got some real concerns that he cannot, because he feels these views so deeply and so passionately. -- Schumer again (again quoted by Hatch).
Another Senator accused General Pryor during the hearing of "asserting an agenda of your own, a religious belief of your own. . . ." -- Hatch again, quoting an unnamed senator on the Judiciary Committee.
I think the very legitimate issue in question with your nomination is whether you have an agenda, that many of the positions which you have taken reflect not just an advocacy but a very deeply held view and a philosophy, which you are entitled to have, but you are also not entitled to get everyone's vote. -- Hatch yet again, quoting another unnamed Democrat.
(All of the preceding quotes can be found at 149 Cong. Rec. S10465-06, 2003 WL 21766924.)
Now, most of these senators were careful to be vague about what sort of "philosopy" or "beliefs" they were talking about. (Politicians are nothing if not good at equivocating.) They could have meant "judicial philosophy" vis-a-vis things like unenumerated, penumbral rights like the right of privacy, or "beliefs" about how the Constitution ought to be construed. But many religious conservatives have understood them to mean religious philosophy and religious beliefs:
And in [Attorney] General Pryor’s case his [Catholic] beliefs are so well known, so deeply held, that it is very hard to believe, very hard to believe, that they are not going to deeply influence the way he comes about saying, “I will follow the law,” and that would be true of anybody who had very, very deeply held [Catholic] views . . .
Did Schumer say "Catholic beliefs"? No -- but it's what a lot of people think he meant.
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.
In Pryor's case, Orin Hatch was able to cite several instances in which then-AG Pryor enforced or argued on behalf of existing law despite his own conflicting personal beliefs. I'm not sure I find those examples very persuasive, since an AG's function is quite different from a judge's. Nevertheless they're concrete examples, and all Schumer, et al. seem to have is speculation, seemingly based solely on the fact that Pryor has strong moral beliefs. I don't think Schumer and his cronies should be able to get away with establishing that sort of litmus test for judges, even if it doesn't amount to anti-religious bigotry.