Do Liberals want to impose a Test Oath for the Judiciary, or are Catholics unfit to be Federal Judges?

I don't really pay attention to judicial nominations, but CrimLaw called my attention to the Pryor nomination. Apparently, Pryor refused to back down on Roe v. Wade, calling it a mistake that has killed millions. This has naturally exercised the Gauchistas. TalkLeft inveighs:

While he admitted that his calling the Supreme Court Justices ""nine octogenarian lawyers" a mistake, he refused to abandon or distance himself from his other controversial views:

At yesterday's hearing, Pryor was asked several times about his past assertions that Roe v. Wade "is an abominable decision" and "the worst abomination of the history of constitutional law." He said he still believes that. "I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result," he said. "It has led to the slaughter of millions of innocent unborn children. That's my personal belief."

Call your Senators now....toll free...1-800-839-5276 and protest Pryor's confirmation. This man does not belong on the federal bench--especially when his appointment would be for life.

Ruminate This provides a "parade of horribles" including Pryor's membership in the super-conspiratorial "Federalist Society" and his "long record as an opponent to Roe v. Wade and women's reproductive rights." Pryor also - gasp - opposed the Family Medical Leave Act and Disabilities Law. [Which makes him unfit for the judiciary exactly how?]

There has, however, been no claim that Pryor would not follow stare decisis - although there may be a liberal undercurrent against stare decisis on their beloved issues. Pryor testified that:

"I have a record as attorney general that is separate from my personal beliefs," he said. "I have demonstrated as attorney general that I am able to set aside my personal beliefs and follow the law, even when I strongly disagree with the law."

In fact, Pryor as Alabama Attorney General counselled that certain provisions be construed liberally in deference to the decision in Casey.

So, what's going on here. Is there a thought control litmus test for liberals. Do they really believe that a member of the judiciary can only think one way about certain issues?

The more important point, though, is that this test would construct an unconstitutional Test Oath. No practicing Catholic could be a federal judge, even if committed to stare decisis. Significantly, Pryor is a Catholic:

Unlike many nominees, Pryor did not try to obscure his views on abortion at his Judiciary Committee hearing. He was asked several times about his past assertions that Roe v. Wade "is an abominable decision" and "the worst abomination of the history of constitutional law." Pryor, who noted his Catholic faith, said he still believes that.

"I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result," he said. "It has led to the slaughter of millions of innocent unborn children. That's my personal belief."

It is absolutely amazing that the Left, which is usually so good at gleaning the barest hint of an establishment of an official creed and can winkle out the barest hint of censorship seemingly at will, has missed the civil rights aspect of this interrogation.

Pryor is allowed to believe what he wants. He is constitutionally allowed to be a practicing Catholic. So long as he agrees to follow the rules - the law, stare decisis, constitutional precedent - then he is fit to be a federal judge. But to declare him unfit because of his exercise of his First Amendment rights in expressing the personal beliefs formed in accordance with his religious tradition raises some serious questions about religious liberty in America. The Left constantly plays the "slippery slope" theme and argues that we are on a dangerous path to tyranny because non-citizens who engage in acts of war are not given full protection under the Bill of Rights. But, when the proposition is made that a Catholic is unfit to a federal judge because of his religious faith, the Left not only doesn't protest, it acts as a cheerleader for the forces that seek to civilly disable 25% of the American population.

[Further resources: See also Lumpkin v. Brown, 109 F.3d 1498 (9th Cir. 1997) in which the Ninth Circuit upheld the termination of Rev. Lumpkin from San Francisco's Human Rights Commission. Lumpkin was a Baptist minister who was crudely mousetrapped into vouching for his literalist reading of Leviticus by gay activists. Although the tactics used to undermine Lumpkin were nothing more than the basest form of "red baiting," Lumpkin's termination was probably justifed by the fact that he was part of the executive department of San Francisco and, ultimately, the mayor had the right to control the message expressed by city officials about subjects within their department. The Left had better be careful about this approach, however, since the principle is that the private beliefs and utterances of their candidates on a variety of issues are equally fair game.]

Update: Other bloggers have picked up on the "NCNA" ("No Catholic Need Apply") aspect of this story. Dodd at Ipse Dixit (another lawyer with an obscurely titled Latin blog name) writes:

My old Con Law professor Douglas Kmiec has some comments today on Pryor's nomination specifically. He points out, as I did the other day, that Pryor presents a problem for the Left - because he's been scrupulous about upholding the law even if he disagrees with it - and wonders if the fact that two of the four are Catholic has something to do with it.

Said Kmiec opines in OpinionJournal:

There is a last point that should not be swept under the rug. Mr. Pryor (and Ms. Kuhl) are practicing Catholics. Some of the opposition to both comes dangerously close to a religious exclusion, or at the very least, indulges the tired belief of the Legal Realist school that it is impossible to separate who you are from how you judge. One thought that John F. Kennedy had put this kind of sophistry to rest in his 1960 presidential campaign

Incidentally, I know that this all sounds perilously close to playing the "victim-identity" card. But there is an interesting angle here pertaining to the way that jurisprudence is approached from the left and the right.

Conservative judges tend to hold to the "archaic, premodern notion" that there is something called the "Law." Conservatives reify the law into something that has kind of a tangible external existence, which purportedly controls their analysis.

Liberal judges are more inclined to look at the law as a set of policies and guidelines which may be used to solve problems. They will ask what the underlying policy of the law should be, and then solve the problem.

Both approaches have their drawbacks. One of my published decision reverses a formulaic approach to a legal issue. The judge is known to be judicially conservative. (A very intelligent, younger judge, incidentally, so don't play on those stereotypes, but he felt bound by a prior decision even though the legal regime had changed after the prior case because of the enactment of the Uniform Commercial Code. See Serian v. Agri-Sun. In oral argument the judge admitted that the precedent "made no sense," but it was precedent and as a consistent judicial conservative he passed it up to the Fifth DCA to change its position, which is an example of the conservative judicial tempermant in a nutshell.)

In short, a conservative judge would probably be more inclined to adhere to stare decisis than a liberal, but liberals projecting their own attitudes onto individuals such as Pryor are truly playing the "legal realist" game alluded to by Kmiec. They can't really believe that a Catholic could dissassociate his personal beliefs from his approach to the "Law" because liberals don't really believe that the "Law" is anything more than a tool for social reorganization. In other words, liberals may be inherently predisposed to play the game of "test oaths" based on a nominee's personal identity.

If that's the case, per Kmiec, the fact that liberals can't "separate who you are from how you judge" may eventually force Catholics to form a "victim-group identity" opposed to liberalism. And, I ask again, do they really want to do that to 25% of the population?