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.
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