More on Religious Tests for the Judiciary

Yesterday, I agreed with Steve Bainbridge's argument, contra Cathy Young and Eugene Volokh, that the exclusion of Catholic and Evangelical judges from consideration or approval to the federal bench amounted to unwarranted harm being rendered to them, whether or not religious bigotry played a role in those exclusions.

Today, this post, by Rick Duncan at Red State Lawblog, argues that, regardless of whether targeted religious bias or disparate impact is at work in this conflict, people otherwise deemed qualified for the position are being denied a job because of their religious beliefs.

Surely this is the case, and to deny it is to be blinded by pure legalisms in an arena that is far more political (and real world) than academic. In other words, regardless of the de jure interpretation of what's happening here, de facto, religious beliefs are keeping people from being approved. The debate, therefore, is not about ideology, unless one posits that religion is merely an ideology. And while I don't doubt that many on the left see it as nothing more than that, surely it is they who represent an overly legalistic approach to this issue.

Then again, they have little choice. Since opponents of religious nominees cannot base their arguments against pro-life appointees on that person's religious beliefs, they resort to arcane legal arguments to defend their actions. And with legal hair-splitting as their only weapon, we're sure to see more legal-speak to defend the exclusion of religious people from the judiciary.

Update: Steve Bainbridge has responded to his critics, especially to Cathy Young, and he, again I believe, makes the better argument. He links to many who've both agreed and disagreed with his argument, and, as I write above, it's really too much to assume, even for the sake of argument, that the left harbors no hostility to religious judicial nominees. In his concluding paragraph, he writes:

We should hold their feet to the fire and make them explain why having a religiously-motivated opposition to, say, abortion is a job-related qualification.

Exactly. Hiding behind specious hypotheticals (see the end of Steve's post) or classroom legalese won't do on matters of this magnitude.