Dems want to bench judges of faith

Posted: Aug 06, 2003 12:00 AM

Are Senate Democrats anti-Catholic? Probably not.

Are Republicans right to accuse Democrats of religious bias against Catholics? Probably, yes.

If I sound ambivalent, it's because I am. On the one hand, I think the suggestion that the Senate Democrats who oppose Alabama Attorney General William Pryor are religious bigots is unfair. Several of the Democrats on the Judiciary Committee are themselves Catholic.

Their objection to Pryor's nomination for a federal judgeship rests on their zealotry on one side of the abortion issue and what they perceive as Mr. Pryor's zealotry on the other side. Senators Dianne Feinstein, D-Calif., Chuck Schumer, D-N.Y., and Ted Kennedy, D- Mass., and the rest are very pro-abortion and Mr. Pryor is very anti. He's called Roe vs. Wade "the worst abomination in the history of constitutional law" and that it has "led to the slaughter of millions of innocent, unborn children. That's my personal belief."

In response, the Democrats, particularly Schumer and Feinstein, keep harping on what Schumer calls Pryor's "very, very deeply held views." Feinstein explained to Pryor, "Virtually in every area you have extraordinarily strong views which continue to come out in a number of different ways."

The problem is that those "deeply held views" are the required views of observant and faithful Catholics - and Baptists, Mormons, Orthodox Jews, etc. In other words, if in your heart you adhere to the instructions of your faith on a major moral issue, you are unqualified or at least less qualified to hold important government positions.

The Democratic senators say they don't care that Mr. Pryor's views stem from his Catholicism. If he were an Indian shaman or Buddhist priest, the Democrats would still be against him so long as he was opposed to Roe vs. Wade (though considering how many liberal constituencies see Buddhists and Indians as exotic, Democrats would probably be nicer to Pryor if he converted).

But just because the Democrats are not bigoted, that doesn't mean they aren't biased. A number of liberal journalists, Richard Cohen of The Washington Post, Peter Beinart of the New Republic and even Byron York, my colleague at National Review, have accused the Republicans of hypocritically accusing the Democrats of bigotry.

This strikes me as unfair on two counts. First, the Republicans have generally taken care not to accuse Democrats of personal animosity toward Catholics. Second, as is so often the case with charges of hypocrisy, the other side is hypocritical too. For years, the lynchpin of liberal jurisprudence on civil rights has been the notion that one does not need to prove malice or bigotry to demonstrate that discrimination is taking place. All one need do is show that a given policy leads to a "disparate impact."

For example, poll taxes and literacy tests were overturned by the courts because they were deemed, correctly, to discriminate against blacks. Personally, I have no problem with the idea that people should know how to read before they can vote. That doesn't make me a bigot, but it does mean I favor a policy that might disproportionately impact blacks. (My solution: Improve education.)

The point is that, thanks to liberals, as a matter of law and politics we've come to accept that "disproportionality" - in women's athletics, minority hiring, insuring the elderly or disabled, etc. - is often prima facie evidence of "bias." If we're hypocrites for using this logic, liberals are hypocrites for abandoning it.

The Democrats are taking the position that if you agree with your faith on abortion, gay rights, etc., then you face the presumption of incompetence when it comes to enforcing the law of the land. By this standard, serious and committed people of faith will be less likely to be approved for judgeships. Think of it this way: If our elected leaders took the position that anybody who believes eating pork is wrong can't work for the Department of Agriculture, "serious" Muslims and Jews would be barred from such jobs.

This is most certainly a bias against "serious" Catholics, among others. In fact, it's a bias against religious faith in general. I'm no absolutist on this. If a religion says a man can burn his wife or murder your children, that's certainly something to worry about.

But many of the "deeply held views" of Mr. Pryor and others (remember the Ashcroft nomination hearings) are mainstream and traditional views held by tens, if not hundreds, of millions of Americans.

If Democrats believe such views should disqualify you from government service, we should have an argument about it. Sure, Republicans can sound tone deaf and hypocritical for crying bigotry the way liberals so often do on matters of race and sexuality. And the "No Catholics Need Apply" rhetoric can go too far. But that doesn't mean they're wrong for bringing the issue up.