Further Thoughts on Religion and the Judiciary

I've posted several times over the past few days on the disagreement between, on the one hand (that would be the correct one), Steve Bainbridge and Juan Non-Volokh, et al., on the other, Eugene Volokh, Cathy Young, et al. Bainbridge has argued, persuasively I think, that the refusal of Senate Democrats to allow a vote on Catholics or Evangelicals who believe, as an article of faith, that abortion is wrong amounts to religious discrimination in practice if not in intent.

Today, Bainbridge has another post , the heart of which is this hypothetical exchange:

Senator: "Do you support Roe v. Wade?"

Nominee: "Senator, I would attempt to follow and apply the law to the best of my ability."

Senator: "If you had a case before you that required you to follow Roe v. Wade, would you do so?"

Nominee: "Senator, with all respect, I don't think I should try to forecast how I would rule in particular cases. As I have said, however, as a circuit court judge, I would attempt to follow and apply binding Supreme Court precedents to the best of my ability."

Senator: "You're a devout Catholic, aren't you?"

Nominee: "Yes."

Senator: "Do you believe what the Church teaches about abortion?"

Nominee: "Yes."

Senator: "Well, in light of your last two comments, I don't think you can be trusted to be on the bench."

Maybe that's not technically a religious test, and maybe it's not technically religious bigotry, but when it happens over and over again wouldn't it start to look like the Senator has hung up a sign reading "Catholics need not apply unless they're willing to renounce Church teaching"?

To be sure, no Senator likely would be so blunt or foolish as to make those last couple of comments. (Although some have come awfully close.) Query, however, whether one cannot reasonably infer that some Senate Democrats are thinking such thoughts?

Perhaps, more effectively than his earlier posts, this one gets to the heart of the matter. I argued initially that the arguments of Volokh and his allies in this debate had turned the matter into a mere legal debate better suited for the classroom and, in doing so, ignored more pertinent, and real world, events unfolding in the Senate. It has never been a matter of legalisms, but of prohibition, because the event is unfolding not in a courtroom or classroom, but in the political arena. Perception is vital in this contest, and I think Steve Bainbridge has illustrated that well today. He's surely correct that some Democrats have given plenty of evidence that, even if they would stop short of stating outright that people with deep religious conviction are unworthy for the office, they're acting as if such a prejudice dominated their reaction to the nomination of such a person to the federal bench.

Although Daniel Henninger's column today concentrates on a different matter (the rise of the conservative media), he describes the current impasse in the Senate perfectly:

For Democrats, judicial philosophy is a cultural Armageddon. Harry Reid and Ted Kennedy have turned the Senate into a Branch Davidian compound. No one in the liberal cult is allowed to leave, including the hostage nominees--unless they recant their conservatism. How many Senate Democrats plan to be in this bunker when Bill Frist's ATF squad detonates the "nuclear option"?

Canned biscuits, anyone?