Catholics Who Embarrass Me -- The Sam Brownback Edition
Eduardo Moisés Peñalver December 19, 2006 - 10:40am
An interesting article in today's NY Times about Sam Brownback's decision to stop blocking the nomination of Judge Janet Neff, a state judge appointed to be a federal trial judge, because she had attended and spoke at the commitment ceremony (not a gay marriage, since those were not yet legal in Mass.) of the gay child of a long-time neighbor. Brownback still plans to vote against Judge Neff. Ostensibly, his position is that she cannot be neutral in any future case involving gay marriage and so he doesn't think she belongs on the federal bench at all.
There are so many interesting things about this story. First, remember back during the fight over judicial filibusters that Republicans took the line that all of the President's qualified judicial nominees deserved an up or down vote? Apparently Brownback didn't get that memo until recently. Funny we haven't heard Bill Frist get apoplectic about Brownback's block.
Second, Brownback's explanation for his behavior is bizarre. The ability of a federal trial court judge to have much impact on the gay marriage debate is extremely limited, as Brownback surely knows.
But even if a federal trial judge could have a substantial impact on the debate, attendance at a long-time neighbor daughter's commitment ceremony is a poor proxy for determining the truth of the two premises necessary for Brownback's twisted logic to have any purchase: (1) that Judge Neff indeed has a strong opinion in support of gay marriage AND (2) that Judge Neff is unwilling to set those views aside when deciding a case regarding gay marriage.
The relationship between Judge Neff's attendance and premise (1) is undermined by the fact that a commitment ceremony has no legally binding force and is, in effect, merely a promise to remain faithful to one's partner. It's just as plausible that she attended the ceremony because, as she said, "the woman was, in effect, a part of her family and was like a big sister to her own daughters." And the mere attendance at such an event, even if it were to support premise (1), says absolutely nothing about premise (2).
Charles Fried apparently agrees:
Charles Fried, a HarvardLaw School professor and leading conservative scholar, said Mr.Brownbacks actions were improper. First of all, people go to partiesfor all sorts of reasons, Professor Fried said, and how one would ruleon a case should not be inferred from that private activity.
In addition, the neutral-sounding explanation Brownback has come up with -- that he is concerned about the nominee's impartiality in a future gay-marriage case -- crashes into the problem that he would likely have no difficulty at all voting for a judicial nominee who strenuously opposes gay marriage. More likely, although he has not said so, Brownback thinks that anyone who would attend her neighbor's child's commitment ceremony is far too liberal to sit on the federal bench. Apparently, Brownback's opposition to gay marriage means that, confronted with a similar situation, he would have declined to attend his neighbor's daughter's ceremony. That's certainly his choice to make, but what's interesting is that he can't conceive of anyone who opposes gay marriage making a different decision. In other words, merely opposing gay marriage is not enough to qualify you for the federal bench in Brownback's view. You also have to be a sanctimonious jerk about it.
Most likely of all, though, this was just an easy opportunity for Brownback to score points with the religious right in his quest to become the Republican nominee for President in 2008. And for those purposes, nothing seems to work better than a little gay bashing. With the primaries still over a year away, we can look forward to many, many more instances of Brownback taking ridiculous positions in order to prove his social conservative bona fides.
About the Author
Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.