Fat Steve's Blatherings

Wednesday, April 27, 2005

Interesting Questions

      Via Prof. Reynolds, we get our attention drawn to an interesting exchange between Cathy Young and Prof. Stephen Bainbridge.

      It started with a column Young did for the Boston Globe, where she appears regularly.  Young noted that several Republican politicians and political activists have said that the refusal of some Democrats to allow certain judges to come to a vote is due to the fact that they are devout Christians, and opposed to abortion on religious grounds.

      Nonsense, says Young.  Some secularists oppose abortion on secular grounds, and surely the Democrats would oppose them too?  So, it's not religous predjudice, it's political prejudice.

      'Not so fast', says law prof. Stephen Bainbridge.  Anti-discrimination law has long recognized the principle of "disparate impact."  In disparate impact cases, a test that is neutral on its face may still be illegal discrimination, if it disproportionately screens out members of one group rather than another.  Bainnbridge quotes a legal source, with edits:
      Bigotry is better hidden than it used to be and, thus, proving discriminatory intent is often impossible. Disparate impact provides a useful prophylactic for rooting out intentional discrimination, and it has the important side-benefit of doing away with rules and policies that hold back minorities devout Christians for no good reason. Any qualifying test that hurts minorities devout Christians, and isn’t job-related, is just as well gotten rid of.

      'You're wrong Professor,' says Young.  She offers two reasons.

      Taking the second reason first, Young says:
      Correct me if I'm wrong, but weren't conservatives supposed to be against nebulous standards like "disparate impact"? Creative interpretations of what is and isn't "job-related" have led to some absurd court decisions -- throwing out "gender-biased" physical strength and endurance tests for firefighters, or nixing written tests for promotions in the police force because they are disproportionately flunked by minorities. Do conservatives now want to extend this "logic" to the absurd conclusion that a prospective judge's views on important legal issues cannot disqualify him from the job if those views are based on religion?
      Well, Ms. Young, here I think you are mostly wrong.  Conservatives object to using disparate impact to achieve unlegistlated social goals, but not to root out real discrimination.    If someone comes up with a test whose sole effect is to discriminate against otherwise equally qualified members of some group, conservatives would support government action against that test.  What we object to is things along the lines of shutting down men's sports teams on campus, because there are more male athletes than women, because not as many women wish to be in athletics.  Disparate impact claims must not be frivilous or unrelated to real discrimination, say conservatives.

      Which brings us to the real question.  As Young notes:
      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.
      That puts the issue in a nutshell.  What is "job-capability" for a federal judge, and how, it at all, do religious issues relate to it.

      One thing that should be addressed first, though: what is religion, legally speaking?  Last I looked, the legal definition of religion included atheism and agnosticism, which is why atheists can claim standing in religious freedom cases.  That, in turn, means that distinguishing between "religious" and "secular" grounds for an opinion is not necessarily easy.

      Getting back to the question of job qualifications, what are the qualifications to be a judge?  Young says:
      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).
        Odd, I thought it was a judge's job to decide legal cases, based on the Constitution, the statutes, and treaties entered into by the United States.  Unless I misunderstand her badly, Young is saying that the Democrats look on the federal bench as a way of pushing its agenda down the throats of the citizenry, regardless of whether they citizens approve said agenda, and therefore the nominee's views on policy are part of his or her qualifications.

      If that is indeed what she is saying, and then I don't see how that excuses the Democrats from the charge of religious prejudice.  Their view, honestly stated, is that people who have views that disagree with theirs are unfit to be judges.  Since religious beliefs will inevitably affect what a person views as proper policy, they do indeed believe that sincere members of certain religious groups are automatically unfit for the bench.  If that isn't prejudice, what is it?

      I'd say the proper standard for judicial nominees is knowledge of the law, and willingness to abide by it.  Whether judicial nominees approve of abortion, in their role as citizens, is unimportant.  The issue is whether their decisions as to what, if anything, the U.S. Constitution requires the states and federal government to do about abortion are well-reasoned and solidly grounded in the law.  In short, does a nominee have the intellectual honesty to say 'As a citizen I disagree/agree with this law, but as a judge, I find it constitutional/unconstitutional'?

      But perhaps I am wrong.  Can anyone point me to a good argument that the judges should be allowed to enact policy that have no foundation in the Constitution or the statutes?

      Finally, I can't help but suspect that Cathy Young, Glenn Reynolds, Eugene Volokh, and Ann Althouse all acquit the Democrats of charges of religious prejudice precisely because they approve of the abortion law the Supreme Court has made, and don't want neutral constitutional reasoning.

      I wonder what the four will say, the next time a constitutional question is decided against their preferences, in a blatantly political way?



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