Spotting Discrimination, if not Bigotry

Steve Bainbridge rather easily dispenses with an argument put forward in today's Boston Globe by Cathy Young. Her position, which is defended in a post by Eugene Volokh, is that the Democrats' hostility to religious judicial nominees does not amount to religious bigotry. Here's a bit of Young's op-ed:

The conservatives' stance eerily mirrors the left-wing shibboleth that opposition to race-based preferences in hiring or education is racist and opposition to radical feminist orthodoxy is anti-female. Suppose Senate Republicans were blocking the judicial nomination of a feminist legal scholar who had argued that in rape cases, the accused should be presumed guilty until proven innocent. Not many conservatives would be impressed with the argument that this is a sexist attempt to keep women off the federal bench. And I can imagine the glee on the right if, say, Hillary Clinton jumped on the bandwagon of such a complaint.

Like sexism and racism, anti-religious prejudice really exists (though the notion that Christians in America are persecuted rivals in absurdity the notion that women in America are oppressed). But some conservatives are now using it as their ticket in the victimhood sweepstakes. The left has the race card and the gender card; the right has the ''faith card."

This right-wing political correctness is noxious for many reasons. It is an insult to religious believers who don't hold conservative views on abortion, homosexuality, and other social issues -- including Republicans like Rudy Giuliani or Arnold Schwarzenegger. It is also blatantly hypocritical, since conservatives have repeatedly used a ''religious test" to suggest that the non-religious or even the not-religious-enough are unfit for office. President Bush himself has said that ''we need common-sense judges who understand that our rights were derived from God." (For true religious bigotry, look at Ron Forster, a high-ranking Republican legislator in Georgia, who opined in 2003 that judges or public officials who don't believe in God are ''more likely to be corrupt.")

To which Volokh adds, in what amounts more to an assertion than an argument:

Young's analysis strikes me as quite right. One can plausibly fault the Senate Democrats' opposition to the President's judicial nominees on various grounds, but "religious bigotry" is not one of them. As best I can tell, the Senators care about the nominee's politics, ideology on contested legal questions, and likely future votes on such questions, not about the nominee's religion.

Of course, there may well be a correlation between certain political or judicial views and religion. But as Young's examples show, this doesn't turn political and ideological hostility -- whether that hostility is justified or excessive -- into religious bigotry.

Here's Bainbridge's reply:

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 dsicriminated [sic]. 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.

Obviously, I am not claiming that the Senate is violating Title VII. Instead, I am simply pointing out what strikes me as an apt analogy.

The Democrat litmus test for judges has a disparate impact on devout Catholic and Evangelical nominees for judicial office, which is a perfactly [sic] appropriate ground for criticizing that litmus test.

He's absolutely correct, and the effort to reduce the consequences of effectively banning devout Catholic and Evangelical nominees for judicial office cannot be reduced to the consequence of placing their ideas into the political arena. Bainbridge's analogy works because the consequences he illustrates are the same as they would be even if no religious bigotry is present. But, given the hostility of so many on the left to devoutly held religious belief, whatever the origin, the historical evidence is also on Bainbridge's side.

Update: Steve Bainbridge has posted some of his critics' arguments, along with further rebuttals, and I think that, again, he comes out on top. See also my post above.