The party started with Young's Boston Globe column where she said that conservatives were playing the "faith" card much the same way Democrats played the race or gender card. She asserted that Democrats were clearly opposing the nominees because of positional differences (e.g., the nominees are pro-life), not because they are Catholic or Christian.
Bainbridge agrees this is true on face, but then draws a comparison to Title VII discrimination law and "disparate impact" claims. Essentially, if an ostensibly neutral standard, in effect, harms a given group way beyond what statistics would dictate, then the standard becomes suspect. In this case, if opposing "radical pro-lifers" means very few Christians can get on the bench, then it is discriminatory and anti-Christian.
I would have loved to jump all over this, but Young struck back first:
1. The human resources guide Prof. Bainbridge quotes refers to "any qualifying test that hurts minorities, and isn't job-related" (emphasis added). Indeed, the U.S. Supreme Court has stated that in order to be a violation of Title VII, an employment practice must be "unrelated to measuring job capability." For instance, job interviews that focus heavily on a prospective employee's familiarity with sports -- tending to screen out women -- are legally acceptable if you're hiring writers for a sports magazine, but not if you're hiring stockbrokers.
Is Prof. Bainbridge saying that a judge's views regarding the legality of abortion are not "job-related"? If the Democrats were refusing to confirm someone as, say, Secretary of Agriculture based on his or her anti-abortion zealotry, that would be mere prejudice. However, 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).
2. Correct me if I'm wrong, but weren't conservatives supposed to be against nebulous standards like "disparate impact"? Creative interpretations of what is and isn't "job-related" have led to some absurd court decisions -- throwing out "gender-biased" physical strength and endurance tests for firefighters, or nixing written tests for promotions in the police force because they are disproportionately flunked by minorities. Do conservatives now want to extend this "logic" to the absurd conclusion that a prospective judge's views on important legal issues cannot disqualify him from the job if those views are based on religion? (By the way, would that also apply to a "devout Muslim" who advocated the adoption of Islamic sharia law in the United States? Just wondering.)
I don't agree with everything that Young says (I, for example, am far more open to disparate impact claims than I suspect she is), but she is correct in implying that Professor Bainbridge probably is not such a gung-ho supporter of "disparate impact" claims in other cases as he's being here (nor, for that matter, I'd suspect are the judges in question).
Personally, I'd be willing to offer a trade to Bainbridge--throw the "disparate impact" door as wide open as this post implies in all cases, and I'll agree to examine Democratic actions against the judges under that paradigm as well.