ProfessorBainbridge.com

UCC to Divest from Israel?

From the LA Times:

The 1.4-million-member United Church of Christ will vote this summer on whether to divest from certain U.S. firms doing business with Israel, a protest against the Jewish state's occupation of Palestinian territories, church officials said Friday.

It'd be a lousy investment decision, as I explained in a TCS column on the PC(USA)'s divestment decision. It's also immoral. I call that a lose-lose scenario.

Fun with Data Mining

James Barnes observes:

If [Hillary] Clinton ends up capturing the Democratic nomination, her success will mark the first time since Adlai Stevenson in 1956 that a Democratic front-runner who was neither an incumbent president nor an incumbent vice president has won after being identified as the leader of the pack in Gallup's first post-election poll of the cycle.

I love useless trivia like this, even though it means exactly nothing in terms of predictive value. It's just data mining.

Where's Hayek When You Need Him?

Gerard Baker on the UK Election:

MUCH INK has been spilt in an effort to explain why this election campaign has failed to engender excitement in the streets. Allow me, as a quasioutsider, to offer a provocative thesis.

I haven?t lived in Britain for more than a decade now, having spent most of my time in the US. But back in the country for the election, I?m not surprised at the palpable sense of futility. The British people are steadily being reduced to a state of cringing dependence on an ever-more voracious and aggrandising Government and a political establishment of almost unconquerable scale that supports and sustains it.

Wow: "a state of cringing dependence on an ever-more voracious and aggrandising Government." What a potent turn of phrase. Indeed, that's serving up the red meat, eh? In any event, it would be a pity if the UK decided to voluntarily start back down The Road to Serfdom from which the Thatcher Revolution once saved them.

Has Bush gone Commie?

President Bush proposes social security reforms that effectively means-test it:

Under the proposal, first developed by Robert C. Pozen, an investment executive, benefit cuts would be imposed gradually on future retirees. The cuts would fall most heavily on people at upper income levels. The cuts would be less, but still substantial, for middle-income workers. Low- income people would suffer no benefit cut at all. Politically, the plan has the advantage, in the White House's view, of being attractive to moderate Democrats by making the system more progressive. (Link)

Has Bush suddenly become a redistributionist, soak-the-rich pinko? I doubt it. Instead, I suspect there may be something else going on here. William Voegli recently reminded us of what he calls The cynical idealism behind Social Security:

Wilbur Cohen, who devoted half a century in government to designing and defending America's social insurance programs, gave his answer in a 1972 debate with Milton Friedman on Social Security: "I am convinced that, in the United States, a program that deals only with the poor will end up being a poor program. . . . Ever since the Elizabethan Poor Law of 1601, programs only for the poor have been lousy, no good, poor programs. And a program that is only for the poor- -one that has nothing in it for the middle income and the upper income- -is, in the long run, a program the American public won't support." In other words, people who don't need Social Security and Medicare are enrolled as beneficiaries for the sake of people who do. Cohen doubted that people could be persuaded to support programs to help the poor, but he was confident that they could be induced to support them.

Since Social Security long has been the third rail of US politics, maybe Bush thinks the prospects of serious changes in the program will be stronger in the long-run if political support for it is weakened. It would be consistent with suggestions that Bush's real goal in pursuing private accounts is to expand the investor class, which leans GOP. In other words, the whole thing could be just another move in a long chess match.

If I'm right, the nice thing about Bush's plan is that it forces the Dems to make a tough choice: Do they publicly disavow their adherence to soaking the rich progressivity as a solution to income inequality or do they risk weakening long term political support for their signature program?

Unfortunately, I don't think the Dems are dumb enough to fall for it. After all, while the Dems may think the people are too dumb to fend for themselves, the Dem elites are pretty bright. Or, at least, well-educated. Even Teddy Kennedy supposedly managed to pick up some learning while drinking his way through Harvard and Virginia. So they'll probably figure a way out of the trap. And if they don't, their pals in the MSM will do it for them.

Volokh on Religious Tests

Fir st Things reviews Scalia Dissents: Writings of the Supreme Court?s Wittiest, Most Outspoken Justice. Quick excerpt:

Perhaps the happiest outcome of the Court?s many miserable decisions is that they provide Scalia with occasions for writing opinions that are both persuasive and entertaining.

GIGO: Polling the Filibuster

Orin Hatch points out that it all depends on how you ask the question:

I saw in the Washington Post yesterday a poll framed in partisan terms, asking whether Senate rules should be changed ?to make it easier for the Republicans to confirm Bush?s judicial nominees.?

With all due respect, this question could easily have been written in the Democrats? new public relations war room. I am actually surprised that such a biased question did not get more than 66 percent support.

A more balanced, neutral, fair poll was released yesterday, asking whether Senate procedures should make sure that the full Senate votes, up or down, on every judicial nomination of any President. The results, not surprisingly, were exactly the opposite of the biased poll, with 64 percent of Americans, including 59 percent of moderates and almost half of liberals, embracing this common sense, fair, and traditional standard.

It's definitely one of those go read the whole thing pieces. Lots of good stuff on the history of the filibuster and its application to judicial nominations.

The Least Necessary Organization in Legal Academia

I once called the American Constitutional Society the least necessary organization in the law school world. But Tony Rickey's found (via Tung Yin) a very plausible new contender for the title:

Via Prof. Yin, I see that a new online journal has started at Harvard: Unbound: The Harvard Journal of the Legal Left. Seeing that reminds me of the old joke about magazines like Maxim: when they publish "The Sex Issue" every year, what exactly do they think the other eleven issues are?

As somebody famous might say, "heh."

Fat Cats Only Modestly Deflated

Remember how the Rigas family looted Adelphia? The SEC and the US Attorney have announced a settlement of the charges against the Rigas:

The Securities and Exchange Commission today announced that it and the United States Attorney's Office for the Southern District of New York (USAO) reached an agreement to settle a civil enforcement action and resolve criminal charges against Adelphia Communications Corporation, its founder John J. Rigas, and his three sons, Timothy J. Rigas, Michael J. Rigas and James P. Rigas, in one of the most extensive financial frauds ever to take place at a public company.

In its complaint, the Commission charged that Adelphia, at the direction of the individual defendants: (1) fraudulently excluded billions of dollars in liabilities from its consolidated financial statements by hiding them on the books of off-balance sheet affiliates; (2) falsified operating statistics and inflated earnings to meet Wall Street estimates; and (3) concealed rampant self-dealing by the Rigas family, including the undisclosed use of corporate funds for purchases of Adelphia stock and luxury condominiums. The USAO also announced that it had entered into a Non-Prosecution Agreement with Adelphia and had settled forfeiture claims against Rigas family members.

Under the settlement agreement, which is subject to the approval of the District and Bankruptcy Courts for the Southern District of New York, the Rigas family members will forfeit in excess of $1.5 billion in assets that they derived from the fraud, including the Rigas family's interests in certain cable properties. Upon the forfeiture of these assets, Adelphia will obtain title to those cable properties and will pay $715 million into a victim fund to be established in the District Court in accordance with the Non-Prosecution Agreement. Under the Non-Prosecution Agreement, payment to the victim fund must occur at or around the time of Adelphia's emergence from chapter 11.

As the reader who flagged this for me observed:

Are you kidding me? Middle managers and middle-tier investment bankers go to the pokey for participating in tax and accounting shenanigans where they got no real -- or relatively small -- benefits and the Rigas family does no jail time? None? Yeah, they gave up a bunch of $$ but they lived like kings for a long time.

It does seem a surprisingly modest settlement, given the scale of the fraud and other wrongdoing, especially given the harsher terms meted out in other recent cases.

Loss Causation in the Supreme Court

In a law review article published several years ago, my friend Mitu Gulati and I semi-seriously argued that the Supreme Court should not be allowed to decide securities cases. The gist of our complaint was that the Court has little incentive to get such cases right and, predictably, often fails so to do. Hence, imagine my surprise when the Supreme Court actually got the latest one right.

Dura Pharmaceuticals, Inc. v. Broudo involved one of the most opaque issues in securities fraud litigation; namely, the requirement of loss causation. (Naturally, my Corporation Law and Economics treatise has a most cogent explanation of that doctrine, but you already knew that, didn't you.) Forbes offers a brief but cogent analysis of the case, which it described as a "no brainer," which probably explains why the 9th Circuit got it wrong and the Supreme Court didn't.

We get mail on judges

Reader responses to my post Judicial Nominations and Disparate Impact. I pass them along without comment for the sake of presenting a wider array of opposing (and supporting) views:

1. Walter Olson emailed a copy of his post on the subject: If you oppose one or another agenda item of the organized religious right these days, you're apt to get accused of "anti- religious bigotry". Gordon Smith (Apr. 26) provides a handy summary with links of the current flap over judicial nominations. Longtime readers will find it little surprise that I think Cathy Young ("An ugly new chapter in the religious wars", Boston Globe, Apr. 25) has the better of the argument (also check out Mark Kleiman, Apr. 26) while Prof. Bainbridge is barking up a desperately wrong tree (Apr. 25) when he declares that Senate Democrats' actions have a disparate impact on nominees "of faith"; the disparate-impact concept has done enough damage already in the realm of employment discrimination law without encouraging it to debilitate the rest of American discourse. [Ed.: Do read Gordon's post ]

2. I don't think your analogy works. An employer can always defend a policy that produces a disparate impact by arguing that the policy is necessary to serve some legitimate employment-related purpose. Admittedly, the standard varies -- a bona fide occupational qualification under Title VII has to be a lot stronger than a rational reason in the ADEA context. From the standpoint of a pro-choice Senator, I think support for Roe would clearly qualify as a legitimate employment-related objective.

3. There's a point, I think, that Eugene (and Mark Kleiman and Glenn Reynolds) are missing in the current debate about judges and anti-Catholic bigotry. It's this: all of the nominees currently being filibustered have said that they will base their legal opinions on their view of the law, not their religious views. Thus, it's not clear to me how Eugene et al. can defend any discussion of their religious views. Unless we have evidence that their religious views have somehow infiltrated their legal views (and I have seen no such evidence), then the mere fact that their religious beliefs are even being discussed at all is grounds for suspicion.  It would be like asking a nominee for Secretary of State if he is Jewish and whether his religion would influence his decisions at State.  Wouldn't the mere asking of such a question raise legitimate questions about the interrogator's attitude towards Jews?

4. I think you?re spot on in that, unless I?m mistaken, you?re not saying that there is hostility towards Catholics for being Catholics as Eugene?s follow up post argued. But only that as a majority of Christians are ardently pro-life and the Left is equally or more so pro-abortion, being a Christian judge triggers an automatic litmus test. Something akin to racial profiling; you?re black and driving an Escalade with ?spinners? on the wheels in the wrong neighborhood, you must be breaking the law.

More on Judicial Nominations

Juan Non-Volokh comes down on my side of the debate:

As much as I hate to disagree with my host, I think I have to side with Professor Bainbridge on this one. As I explained some time ago in posts on the nomination of William Pryor, here and here, I think it is fair to say that at least some Democratic Senators -- and some outside interest groups -- have taken the position that an individual who accepts the Catholic Church's teaching on abortion, and who therefore believes that abortion is murder, is unfit for the federal bench. While I would not call this anti-Catholic bigotry, it is quite anti-Catholic in effect. Larry Solum also had some thoughts on the matter here.

Meanwhile, Mark Kleiman more or less sides with Cathy Young and Eugene Volokh:

An accusation of religious bigotry is a very grave accusation. Prof. Bainbrige should consider whether the evidence in this case justifies his throwing it around so freely.

My original point, of course, was the more modest one that it seemed perfectly plausible to draw the same inferences here, by way of analogy, that one would draw in disparate impact litigation in race or gender cases. Does Prof. Kleiman want to give up the disparate impact principle in those areas?

B16 on Music and Liturgy

Benedict's views on music are very much a mixed bag. On the one hand, there's this:

... pop music, which is cer?tainly no longer supported by the people in the ancient sense (populus). It is aimed at the phenomenon of the masses, is industrially produced, and ultimately has to be described as a cult of the banal. ?Rock?, on the other hand, is the expression of elemental passions, and at rock festivals it assumes a cultic character, a form of worship, in fact, in opposition to Christian worship.

Well, modern pop is certainly banal, but does this mean I've got to delete all those Clapton and Who songs from my iPod? Fortunately, I don't think this is magisterial teaching.

In any case, on the plus side there's this:

Dancing is not a form of expression for the Christian liturgy.

PTL. The only thing I like less than praise music in a worship service is liturgical dance.

(HT: Amy Wellborn)

The Limbaugh Transcript

My request for a transcript of the portion of Rush Limbaugh's 4/26 show in which Rush mentioned my blog brought copies from a slew of readers. My thanks to you all. Here's the excerpt:

That's what the purpose of the filibuster is -- and gaining cloture, that's breaking a filibuster is necessary, or only happens when you get 60 votes. So the bottom line is these nominees aren't even getting a vote, folks. They're not even getting a vote and it's being portrayed here by the media and the Democrats that the Republicans are behaving in a radical fashion on this nuclear option, constitutional option, which would result in votes, and First said, "It's not radical to ask senators to vote on judicial nominees," and his appearance yesterday, no question about it, hardened his effort to strip some of the power away from the Democrats in this whole mess. Now, there's an interesting chart that I got last night. The Economist: It's actually a graph that I got from a website called ProfessorBainbridge.com but the original source is The Economist and it presents a graphic that shows the real problem. Now, you've all heard that the president has gotten all of his appeals court nominees and all of his Circuit Court confirmations, got as many as Clinton has had and all of this, and that isn't true. What this chart represents here, Circuit Court confirmations as a percentage of nominations in the first and second Congress of their terms: Harry Truman got over 90% of his Circuit Court confirmations. Dwight Eisenhower, almost 90. Lyndon Johnson, about 97%, Richard Nixon, 92%, Gerald Ford 79%, Jimmy Carter about 92%, Ronald Reagan about 78%, George Bush 76%, Bill Clinton got 71%, so far George Bush has got 50% - - 50% of his Circuit Court nominees have been confirmed, as a percentage of the nominations, not compared to previous administrations. Clinton got 50 confirmed; Bush has gotten 55. That doesn't matter. As a percentage of those they nominated, Bush is lagging way behind. So this is another myth that's out there, is that, "Hey, we're only filibustering seven of these guys. Hey, we're only filibustering ten of these guys. What are you talking about? Bush has got a clearance rate like nobody's ever had!"

Cool.

Judicial Nominations and Disparate Impact

My friend and colleague Eugene Volokh endorses a Cathy Young column in which she opines, as Eugene summarizes it, that the Democrat's "political and ideological hostility -- whether that hostility is justified or excessive --" towards pro-life judicial candidates does not amount to "religious bigotry" against devout Catholics or Evangelicals. Maybe. 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 discriminated. 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.

The justification that is advanced for the use of the disparate impact standard has obvious relevance to the present dispute, as suggested by my minor blacklined edit:

Bigotry is better hidden than it used to be and, thus, proving discriminatory intent is often impossible. Disparate impact provides a useful prophylactic for rooting out intentional discrimination, and it has the important side-benefit of doing away with rules and policies that hold back minorities devout Christians for no good reason. Any qualifying test that hurts minorities devout Christians, and isn’t job-related, is just as well gotten rid of. (Link)

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 perfectly appropriate ground for criticizing that litmus test. To reiterate, such criticism offers a "useful prophylactic for rooting out intentional discrimination, and it has the important side-benefit of doing away with rules and policies that hold back minorities devout Christians for no good reason." What's so bad about that, eh?

Cathy Young replies here. She begins:

To my argument (with which Eugene Volokh agrees) that the issue is not religious faith as such but public policy views, Prof. Bainbridge replies that Volokh and I overlook the issue of "disparate impact."

As should be readily apparent, I don't buy her premise, even if my friend and colleague Eugene Volokh does. Indeed, it is widely assumed among many of those of us on the right that the Democrats are a party of secularists who object to putting people of faith - especially people of traditionalist religious views (whether Catholic, Protestant, Jewish, etc...) in positions of power. As I've observed elsewhere on this blog:

The growing split between Democrats as the party of secularists and Republicans as the party of people of faith seemingly extends beyond Christians, at least according to a new study of how Jews voted in 2004.

Would it really be so surprising if that partisan reality did not affect - or, indeed, even effect - Democrat decisionmaking, especially on judges? Others are not surprised:

Rick Duncan: Whatever the motivation of the Democratic Senators may be, excellent candidates for the judiciary are being excluded because they believe in a certain interpretation of the Word of God. It may not be a religious test in the strict sense, but these good men and women are flunking the test because of their religious beliefs.

Ace: I find it laughable, however, that the left -- secular and damn proud of it -- has absolutely no anti-religious bias in it. It's a bit silly to pretend that Charles Schumer wouldn't much prefer a secularist justice than one who has confessed (confessed! and I'm afraid that's the right word) to being a pious man during confirmation hearings.

Stop the Bleating: [Despite having initially come down with Young, STB then opines] the perception is that [Democrats are] opposing candidates based on their moral positions vis-a-vis abortion -- moral positions that are in most cases expressions of religious faith. 

Consider these quotes from several Democratic members of the Senate Judiciary Committee during a hearing on the nomination of Bill Pryor:

[I[n General Pryor's case his beliefs are so well known, so deeply held, that it is very hard to believe, very hard to believe that they are not going to deeply influence the way he comes about saying, "I will follow the law." And that would be true of anybody who had very, very deeply held views.  -- Chuck Schumer (quoted by Orin Hatch).

I for one believe that a judge can be pro-life, yet be fair, balanced, and uphold a woman's right to choose, but for a judge to set aside his or her personal view, the commitment to the rule of law must clearly supersede his or her personal agenda. . . . But based on the comments Attorney General Pryor has made on this subject, I have got some real concerns that he cannot, because he feels these views so deeply and so passionately. -- Schumer again (again quoted by Hatch).

Another Senator accused General Pryor during the hearing of "asserting an agenda of your own, a religious belief of your own. . . ."  -- Hatch again, quoting an unnamed senator on the Judiciary Committee.

I think the very legitimate issue in question with your nomination is whether you have an agenda, that many of the positions which you have taken reflect not just an advocacy but a very deeply held view and a philosophy, which you are entitled to have, but you are also not entitled to get everyone's vote. -- Hatch yet again, quoting another unnamed Democrat.

(All of the preceding quotes can be found at 149 Cong. Rec. S10465-06, 2003 WL 21766924.)

Now, most of these senators were careful to be vague about what sort of "philosopy" or "beliefs" they were talking about.  (Politicians are nothing if not good at equivocating.)  They could have meant "judicial philosophy" vis-a-vis things like unenumerated, penumbral rights like the right of privacy, or "beliefs" about how the Constitution ought to be construed.  But many religious conservatives have understood them to mean religious philosophy and religious beliefs....

Young, of course, will contend that such claims merely reinforce her thesis. Young observed of my position, for example, that:

In a way, Prof. Bainbridge's invocation of "disparate impact" confirms a point I made in my column: that the cry of "anti-religious bias" has become the "political correctness of the right," a "faith card" similar to the left's race/gender card.

(See also Richard Bennett. NB: I get it, I just don't buy it.)

I think STB's analysis above does a pretty good job of showing why Young's dismissive attitude towards religious conservatives is misplaced. As the old joke goes, just because you're paranoid doesn't mean that somebody isn't following you.

In any case, I decided not to argue that the Democrats are in fact discriminating against people of faith. Instead, I decided to make a slightly different case, namely that one could draw some interesting inferences from the disparate impact of the Democrats' position. As Winfield Myers observes:

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.

In contrast, Young rejects the disparate impact argument on several grounds. First, she points out that:

... protecting the legal right to abortion is -- for better or worse -- a key part of the Democrats' political agenda. Thus, disqualifying judges who not only oppose abortion but passionately advocate its banning is, from their perspective, directly job-related (hence not discriminatory under the "disparate impact" standard).

In the first place, in disparate impact litigation, the employer doesn't get to decide whether something is job-related. The court does. By analogy, the Democrats don't get to decide what's job-related for judges. In the second, I was persuaded by STB's take on this issue:

If Schumer truly does intend to create a test for judges on the basis of their deeply held moral beliefs about abortion, that test arguably isn't job-related.  I would argue that since judges aren't paid to enact their personal preferences -- moral or otherwise -- into law, and many of them respect their limited role in our system, a judge's personal moral beliefs should be a concern only if there's some concrete reason to suspect they'll unduly influence the performance of his judicial duties, i.e., if he's likely to substitute his own moral judgment for high quality legal reasoning, or his reasoning is likely to be heavily colored by his personal preferences.

Also worth calling to your attention is Matt Barr's take:

What screening out anti-abortion "zealots" does is assume that jurists who oppose abortion -- often on religious grounds -- are incapable of putting their fidelity to the constitution ahead of their personal proclivities. In Young's estimation, that probably makes it a "job related" concern, but this of course is silly. If Senators opposed the nomination of a judge because she was pro-abortion, Democrats would go all Hill v. Colorado on their ass. If Republicans opposed an African American nominee because he was pro-affirmative action, I think race might come up on the Democratic side. Just a cynical hunch.

[Update: Eugene Volokh's latest post cherrypicks STB's argument for rebuttal, whichis fine, but he ignores Matt's argument. I wonder what Eugene makes of Matt's hunch? Would it be unfair to assume that his silence speaks volumes?]

Second, Young opines:

Correct me if I'm wrong, but weren't conservatives supposed to be against nebulous standards like "disparate impact"?

Matt Barr aptly characterized this as the "neener-neener part " of Young's reply and observed of it:

Writing of "Justice Sunday," Cathy Young condemns a "grotesque religio-political circus," Prof. Bainbridge cites "disparate impact" and Young answers you're inconsistent!! Have you noticed that no one ever comes back at a member of the American left and tries to play gotcha by telling them whatever they've just said means, aha!, they're not really liberal?

Matt goes on to observe, aptly I think:

I continue to be bemused that purported libertarians look to the federal government as the sole and last guarantor of their rights. Seat a federal judge who personally opposes abortion and next thing you know abortion will be outlawed everywhere. The reversal of Roe v. Wade would force libertarians to try and persuade the locals abortion should still be available, and you know libertarians and people. Still, a lower federal court is the safest place for a jurist who opposes abortion, if you're pro-Roe: No man or woman in America is more impotent in the abortion debate than a lower federal court judge.

Does Cathy Young really want to defend the Democrat's effort to use the federal courts to preseve a "right" that exists nowhere in the Constitution but rather was created by judicial fiat out of penumbras and other ephemera? An odd take for a professed libertarian, indeed.

Finally, Young says there is a double standard:

Take a hypothetical nominee for the federal bench who has publicly stated that male dominance is essential to a healthy social system. He is (a) an evangelical Christian whose beliefs are rooted in his understanding of biblical principles, or (b) an agnostic whose beliefs are rooted in his understanding of sociobiology. It seems that according to Prof. Bainbridge, the Senate would be allowed to hold the nominee's views against him in scenario (b), but not in scenario (a).

The hypothetical, however, misses the whole point of the disparate impact analogy.

Let's be clear about the point I was trying to make: What the Senate is doing is in fact having a disparate impact on people who hold traditionalist religious beliefs. Accordingly, the Democrats ought to have the burden of showing that they are motivated by concerns other than opposition to or disdain for the religious beliefs of the defeated nominees. We should not allow them to assume it away, as Young wants to do. 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. As we've seen I don't think they can do it; Young perhaps disagrees. (It seems Volokh is just as willing to let them off the hook, without making the slightest effort to hold their feet to the fire.) But let's not let the democrats off the hook as easily as Young does by assuming that its policy rather than beliefs that are driving the Democrats.

In sum, I think Young and Volokh are letting the Senate Democrats off this hook way too easily.

Update: Juan Non-Volokh comes down on my side of the debate:

As much as I hate to disagree with my host, I think I have to side with Professor Bainbridge on this one. As I explained some time ago in posts on the nomination of William Pryor, here and here, I think it is fair to say that at least some Democratic Senators -- and some outside interest groups -- have taken the position that an individual who accepts the Catholic Church's teaching on abortion, and who therefore believes that abortion is murder, is unfit for the federal bench. While I would not call this anti-Catholic bigotry, it is quite anti-Catholic in effect. Larry Solum also had some thoughts on the matter here.

Meanwhile, Mark Kleiman more or less sides with Cathy Young and Eugene Volokh:

An accusation of religious bigotry is a very grave accusation. Prof. Bainbrige should consider whether the evidence in this case justifies his throwing it around so freely.

My original point, of course, was the more modest one that it seemed perfectly plausible to draw the same inferences here, by way of analogy, that one would draw in disparate impact litigation in race or gender cases. Does Prof. Kleiman want to give up the disparate impact principle in those areas?

Reader Reactions re DeLay

The mail has brought a fair number of negative responses to my recent complaints about Tom DeLay. E.g.:

1. So you want to toss DeLay to the wolves for a silly remark about Justice Kennedy? I?ll go along with that, just as soon as Harry Reid resigns as minority leader for his insulting (and ignorant) remarks about Justice Thomas.
2. I read your 4-22 editorial regarding DeLay, the Internet and Justice Kennedy and, frankly, did not recognize the demon you described.
3. DeLay is not the issue.  Neither are John Cornyn, James Dobson, Tony Perkins, et al.  The Left, including the mainstream media, don't spend a second's thought worrying about Ted Kennedy's outbursts. And we're suckers when we play that game beyond a 24-hour news cycle.
4. I just wanted to say that I think you were a bit harsh on the exterminator Tom Delay.  Yes, he was a bit over the top, arguably sophmoric but "imbecile rantings?"     In light of your professed statements about the problem of the imperial judiciary, you've got to understand that the conservative base is very concerned with this issue and thankfully Delay was addressing the issue.  Inartfully? yes, but still addressing it.  Further, for the most part the conservative base are not attorneys and as such don't always appreciate the implications of their comments.  Frankly, I love the exterminator.  He was a successful business man, killed property destroying vermin, drives the lefties nuts, is from the great state of Texas, and is usually on the right side of the issues.  But the bottom line is that we have to reign in our "robed masters" and if Delay can spread the word, more power to him.
5. As a matter of fact we need a DeLay once in a while.  If the house is
   on fire, you don't arrest a man for yelling "fire."  even if he out in
   the street in his birthday suit. {Ed: I just loved that image, until I thought about what Tom DeLay probably looks like naked.}