The New McCarthyism: Religion, Marriage, and Judicial Nominations

Should we determine whether a person is fit to be a judge based on his or her religious beliefs or opinions on contemporary policy debates? Or should the Senate approve judges based on their reputation for fairness, their ability to follow and apply law, and their record of judicial wisdom?

Imagine an orthodox Jewish woman being interviewed on a Jewish radio program speaking about the Torah and its condemnation of same-sex sexual activity. The woman expresses her agreement with the Torah and adds that, in our pluralistic society, we must respect civil laws and act compassionately toward all people.

Let’s suppose she becomes a candidate for a federal judgeship. Should this woman be allowed to serve? What if her stated position is that judges should interpret the law, not make it, and that she would faithfully apply the laws of the nation, even if they are contrary to her religious beliefs? Should this woman be barred from the federal bench?

Now imagine we are dealing with a Mormon lawyer living in Utah in the early twentieth century. Let’s say he has written a letter to the editor in response to an article in a Mormon periodical stating his view that polygamy need not result in the “subjection” of woman and defending it as a legitimate choice for some Mormons. Should this man be barred from the federal bench because such views are “not in accord with the mainstream of American society”? Or should he be allowed to serve as long as he pledges to follow the laws of the nation?

Do we believe that his personal religious beliefs about marriage preclude him from serving faithfully as a judge? Or do we hold that individuals in America should be allowed to hold a variety of religious or moral beliefs as long as they pledge to uphold faithfully the duly established laws of the nation?

Progressivism’s Heretics

I raise these questions because Gordon Giampietro, who seems to be a decent Catholic gentleman, has been nominated for a position on the federal bench. Giampietro is being labeled a “racist” and “unqualified to be a federal judge” because he (a) expressed his agreement with the standard Catholic position on marriage on a local Catholic radio show, and (b) appeared to question (in a very brief comment on an article by Hadley Arkes published on a Catholic website) whether our current way of addressing what he called America’s “original sin” of slavery using racial quotas was the best approach. To the contemporary liberal intelligentsia, both of these positions are heretical.

You get a pass if you’re a Catholic “of the right sort,” like Dick Durbin or Nancy Pelosi, meaning a Catholic who defies the Church. But if you’re a Catholic “of the wrong sort”—remember the “dogmatic” circuit court nominee, Amy Barrett—then you become “intolerable to the tolerant.” And since “the tolerant” understand themselves to be “the good guys” fighting the forces of ignorance and intolerance, any means is justified by the end they seek.

A Madison, Wisconsin newspaper editorial opined that “Even by the low standards that President Trump has set for selecting his judicial nominees, Gordon Giampietro, the president’s pick to fill an open federal judgeship for Wisconsin’s Eastern District, is an exceptionally bad prospect,” due to his “shocking disregard for mainstream judicial thinking” on a range of issues from (surprise, surprise) “marriage equality to reproductive rights,” opinions that place him “on the fringe of American political discourse.”

Justice Kennedy’s Obergefell decision dictating marriage policy for the entire country is “mainstream,” and someone who expresses contrary opinions on an explicitly Catholic radio show is “on the fringe of American political discourse.” “The outcry against Giampietro’s nomination has intensified,” writes the Wisconsin editorialist, “as his sordid record has been revealed.” Note the adjective: sordid. Not just “wrong-headed” or “imprudent,” but “sordid,” which means “morally ignoble, base or vile.” There is something sordid here, but it’s not in anything Giampietro has said or done.

Justice Kennedy’s Empty Promise in Obergefell 

In that famous Obergefell decision, Justice Kennedy pledged that

religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

But Chief Justice Roberts warned in his dissent that

Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage.  . . . That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples. . . . By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. . . . These apparent assaults on the character of fair minded people will have an effect, in society and in court. . . . It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s ‘better informed understanding’ as bigoted.”

Justice Alito also warned in a separate dissent that the decision would

be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African–Americans and women. . . . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. . . .

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

What is being done now to Gordon Giampietro shows who was speaking the truth and who was blowing smoke.

Un-American Activities, Political Liberalism, and the Dissolving “Overlapping Consensus”

Are we not witnessing the contemporary equivalent of the old question used to disqualify suspect persons from government service: “Are you now, or have you ever been, a member of the Communist Party?”

“Gordon Giampietro, are you now, or have you ever been a faithful Catholic?” Such views are now considered “un-American,” “out of the mainstream.” There was a time when liberals thought listening to “fringe” views “out of the mainstream” was a good thing. They read John Stuart Mill’s On Liberty and prided themselves on welcoming many points of view. What happened to those liberals—the liberals of my youth I came to admire?

Rod Dreher has written of the foolishness of “conservatives who took liberals at their word — specifically on the gay marriage issue.” They were “being played for patsies,” says Dreher. “The liberals would assure us that this radical thing they were calling for would never be used to persecute or marginalize conservatives . . . and when gullible conservatives and moderates assented to it, the victorious liberals would soon turn on them, saying it’s a matter of justice that bigots be suppressed.”

Even John Rawls, who argued famously that citizens should not reference “comprehensive doctrines” in public debates, whether those “comprehensive doctrines” were religious (Catholic, Mormon, or Muslim) or philosophical (Kantian, utilitarian, or Aristotelian), believed that his position should not keep individuals from engaging in conversations and debates based on these “comprehensive doctrines” within the communities sharing their point of view. Rawls never suggested that a Muslim should be barred from public service for talking to fellow Muslims in terms suggested by Muslim belief, or that a utilitarian should be barred for taking up utilitarian positions in print.

We don’t insist that utilitarians be barred from serving as federal judges because their utilitarian “balancing” of social costs and benefits might be at odds with the contemporary practice of viewing rights as “trumps” that do not permit the usual social balancing. If a law professor has written an article for a philosophy journal suggesting that it might be the case that we would be morally required to sacrifice the life of one person if the benefit to the whole of society was sufficiently great, should that expression of a common enough (but in my view wrong) judgment be considered sufficient reason to disallow him or her a position on the federal judiciary? Professor Rawls didn’t think so.

The progressive assault on dissenting views undermines the Rawlsian “overlapping consensus” among groups holding various “comprehensive doctrines,” which demands that they all “bracket” their views for the purposes of political discourse. The pledge that made this “overlapping consensus” possible was that individual interlocutors would not be forced into a set of moral, religious, or philosophical views they did not share, and that they would continue to be allowed to speak their minds. It was precisely the ostensible “pluralism” of Rawls’s “political liberalism” that made it so attractive to many. Without this pluralism, “political liberalism” is just another creed—and often an especially harsh and unforgiving one.

Judicial Appointments Are Not Partisan Elections

Some men and woman favor open immigration; others are opposed. Some favor gun ownership; others do not. Some believe in the legitimacy of capital punishment; others find it inappropriate in a culturally and economically developed society. Some favor utilitarian solutions to moral problems; others follow the Kantian solution and embrace some contemporary version of “fundamental rights” jurisprudence.

Should we determine whether a person is fit to be a judge based on which side of those partisan debates he or she takes? Or should the Senate approve judges based on their reputation for fairness, their ability to follow and apply the law, and their record of judicial wisdom?

When did we get it into our heads we should be in the business of “electing” federal judges based on whether or not they agree with our particular ideology or partisan views? Perhaps this was an inevitable development of the general perception that judges are not merely interpreting the law, they are making it. This idea has become so entrenched that some now have the opposite fear: that the judges approved by the Senate won’t keep making the law—that they won’t keep pushing the progressive envelope as so many judges have over the past four decades. It has become so common, so much a part of the expectations of liberal progressivism, that any suggestion a judge might not do his or her part to “push the envelope” is taken as a sign of judicial incompetence and a betrayal of judicial duty.

Keep up with the conversation! Subscribe to Public Discourse today.