RICK SANTORUM AND ANTI-CATHOLIC BIGOTRY, AGAIN

Senator Santorum is at least consistent: according to published reports, he has accused members of his own party of being bigoted because they object to a judicial nominee because of his religious views. The report is from The Hill, here (via Howard Bashman).

Here's a quote from the article:

“This [concern about Holmes] is a classic example of religious bigotry that I thought did not exist in this country,” said Santorum, who is Catholic.

“I believe if that is the reason for anybody’s opposition, they need to think long and hard about one of the most fundamental issues in this country, and that is the freedom of religion.”

It could be that Santorum's words are quoted out of context, but as they stand they seem to argue that (1) it is impermissible to oppose a judicial candidate because that candidate has certain religious views, and (2) it is somehow inconsistent with "religious freedom" for Senators to oppose nominees because of their religious views. Neither position makes sense, even though they both may sound good in the abstract. It all comes down to which religious views one is talking about. We've been around this barn before. It is reasonable to suppose that someone whose religious beliefs include strong views of marital hierarchy will be influenced by those views, in the inevitably complex and underdetermined state of appellate litigation. Judges are partly nominated because they have certain views that the nominator believes will influence their judging. They may certainly be rejected because of estimations of the likelihood that their religious views will influence their judging, and that the results of that judging will disfavor a given Senator's constituents and supporters.

Freedom of religion does not mean "the freedom to have any and all views and then have everyone magically forget about those views when they are delegating responsibility to you." Sorry.

Ray Moore is certainly entitled to his views about the appropriate relationship between church and state. He believes that these views follow from his religious beliefs. Yet it would certainly be odd to accuse people who object to a hypothetical Ray Moore nomination as exhibiting "anti-religious bigotry." Bigotry is a word reserved for those who make illegitimate distinctions between people. I'm not a bigot if I choose the better kickball player to be on my team rather than the worse kickball player; I'm exercising sound judgment. Similarly, I'm not a bigot if I reject a person whose religious views seem to indicate that they will judge in a certain direction -- as judges on appellate courts always have the freedom to do (the "follow the law" line is not persuasive given indeterminacy at the appellate stage).

I'm not saying that Holmes is like Ray Moore; I have never met either of them, and I haven't studied Holmes's record in detail. If there is a distortion in the record, so be it. If Senator Santorum is trying to call attention to the fact that the nominations process is nasty and that peoples' views are distorted and taken out of context, fine. I suspect that he is going beyond that observation, however. Someone who actually believes and defends the view that God created men and women in such a way that the proper marital relationship is one of subordination -- someone who believes that is going to have a heck of a time navigating current equal protection jurisprudence, not to mention family law or a whole host of other areas that express a fundamentally different conception of the meaning of the marital relationship. If the goal (of Senator Santorum and those who support conservative judicial nominees) is to change those conceptions and make them more "Biblical," then, fine, that's the goal, and one should be honest with oneself, at least, about wanting judicial nominees who will express that conception from the bench. One should not be surprised when others object to actions that seem related to that goal, however.

Of course Senator Santorum is not surprised, actually; he probably expects objections. Indeed, calling someone a bigot is a substitute for bargaining and negotiation, often because such bargaining seems pointless or dangerous. It is indeed possible that Senators are influenced by interest groups who may be even more risk-averse with respect to their particular issues than Senators would be personally inclined to be. These groups may also have broader strategic goals than opposing a single nominee because of a well-founded belief that his or her judging will fall to the disadvantage of their constituents. But surely none of this is true only of interest groups with whom one disagrees or who happen to be influencing others in the Senate.