Wampum

Cathy Young, writing in the Boston Globe, notes that Republican charges that Democrats are discriminating against religious people in judicial confirmations are bunk.

Stephen Bainbridge, a law professor at UCLA, counters that Young has overlooked 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 (sic) 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 devout Christians for no good reason."

Professor Bainbridge’s argument is that a disparate impact anaysis shows that Senate Democrats are guilty of religious discrimination. All Professor Bainbridge's argument lacks is evidence to support that very serious charge.

As Bainbridge notes, the first step in a disparate impact case is to accumulate the statistics to show whether or not an identified group suffered a disparate impact.

George W. Bush has made at least 229 judicial nominations. Democrats in the Senate have blocked ten. How many of those 219 confirmed nominees were “devout Christians?” How many of the ten blocked nominees were “devout Christians?”

I do not know the answer to those questions and I suspect that Professor Bainbridge does not either. After all, how could we ever determine which of the nominees are “devout Christians?”

Many people believe that being a “devout Christian” involves more than bashing gays and being pro-life. Unless there is some test to determine who is a “devout Christian,” Professor Bainbridge can not identify the group allegedly discriminated against.

I guess we could ask the nominees if they consider themselves devout Christians. I do not think that would be very helpful. John Kerry, for instance, considers himself a devout Catholic. He certainly attends Mass more often than George W. Bush attends church.

John Edwards, Al Gore, Bill Clinton, Hilary Clinton, and Harry Reid also consider themselves devout Christians. I doubt that those are the type of people Professor Bainbridge believes the Democrats have discriminated against. If self identification does not work, how are the necessary statistics to be gathered?

We could look to see whether the nominees agree with principles espoused by various Christian denominations. Some Christian churches believe the death penalty is wrong. When preparing our statistics for a disparate impact discrimination case, do we exclude all pro-death penalty nominees from our stats on the ground that they must not be “devout Christians?”

Other churches feel that protecting the environment is a fundamental element of Christian belief. One of the blocked nominees, William Myers, has been an advocate and lobbyist (pdf) for mining and ranching interests for much of his career. Should he be included or excluded from our list of “devout Christians?”

I was taught that helping the poor was at the core of Christian belief. One blocked nominee, Janice Brown, wants to return to the Lochner era in which minimum wage laws and child labor laws would be unconstitutional. Should she be considered a “devout Christian” for the purpose of our statistics? If so, why? If not, why not?

No disparate impact case can be brought without statistics showing that a class of persons has disproportionately suffered harm. If Professor Bainbridge thinks that Democrats have discriminated against “devout Christians,” it is incumbent on him to demonstrate which of the nominees are “devout Christians” and which are not. So far, he has presented no evidence whatsoever. Bainbridge has collected a number of responses to his post, many of which make interesting points. (See, Red State, Ace, Stop the Bleating, Mossback Culture, Democracy Project, New World Man, and Juan Non-Volokh). None even begin to present the type of evidence on which a disparate impact case could even be begun. No one has come forth with any evidence to show that the nominees whose conformation has been blocked are devout Christians or that the nominees gaining confirmation are not.

Talk is cheap. If Bainbridge seeks to prove that Democrats have discriminated against devout Christians, and if he intends to rely on a disparate impact analysis for his proof, he needs to produce some evidence.

I do not think that Professor Bainbridge can present such evidence. Disparate impact cases are very hard to prove. We begin with the fact that President Bush is likely to have nominated many people who consider themselves Christians. We then add the complication that whether or not such nominees are “devout” is likely to be a matter of opinion. We also must consider the fact that fewer than 5% of all of President Bush’s judicial nominees have been blocked. Given all that, I just do not think Professor Bainbridge can meet his burden. Without statistical data to support his charge, I am afraid that a motion to dismiss Professor Bainbridge’s disparate impact suit would have to be granted.

Even if Professor Bainbridge could present evidence of disparate impact, he still has not won the case. He neglects to mention that one affirmative defense to a disparate impact case is to show that there is a legitimate, non-discriminatory reason for the action.

Do Democrats have a legitimate, non-discriminatory reasons for opposing the ten blocked nominees? I have not looked closely at all ten blocked nominations but I have previously explained my opposition to three of the nominees without reference to their religion.

I oppose the nomination of Thomas B. Griffith because, among other things, he has shown a lack of respect for the law and the legal profession by practicing law without a license.

I oppose the nomination of William Myers because, among other reasons, he has no judicial experience and he has never tried a single case to a jury in his entire life. Trial experience is not everything in a appellate judge but given that the main function of the Circuit Courts is to correct trial court errors, it is a pretty big deal. I think a Circuit Court Judge should have picked a jury, argued evidence objections, and made a closing argument a few times in his life. I want an appellate judge that knows the difference between hearsay and hirsute. Trying cases is not the only way to learn about how trials actually work, but it is the best way.

I oppose the nomination of Janice Brown because she does not believe that the 14th Amendment incorporates the protections of the Bill of Rights so as to apply those protections to state, as opposed to federal, actions. I think that if one of the secular blue states enacts a statute outlawing the reading of the Bible in private homes, the Free Exercise Clause of the First Amendment should declare such a law unconstitutional. Justice Brown disagrees (by the way, does she still qualify as a “devout Christian”?). For me, incorporation of the Bill of Rights to apply to state and local governments action is a litmus test.

In none of those posts did I make any reference to the nominees’ religious beliefs. Indeed, I know next to nothing about any of their religious beliefs. I did learn today that Justice Brown is a culture warrior in the grand tradition of Pat Buchanan’s 1992 convention speech.

I think those are legitimate, non-discriminatory reasons but you can decide for yourself. If accused of discrimination, I would take my chances in court with those reasons.

Charging Democrats with religious discrimination is serious business. Professor Bainbridge would need a lot more evidence than he has yet presented (none so far) before he could make out a disparate impact case against Senate Democrats. Indeed, I think we have finally found one of those frivolous lawsuits Republicans are always talking about.