Tuesday, December 19, 2006

Sen. Brownback's (withdrawn) opposition to Judge Neff

Now that Senator Sam Brownback has withdrawn his opposition to permitting the nomination of Judge Janet Neff from being considered by the Senate, it's worth examining the grounds that were offered for criticizing his action.

First, of course, there is something deeply undemocratic about the Senate system of "holds" that permits a single Senator to block the confirmation of a judge who has the backing of a majority (not to mention a filibuster-proof majority) of the full Senate. It shares many of the flaws of the "three men in a room" system that Adrienne describes below.

Second, the substantive grounds of Brownback's opposition were ridiculous. Brownback wanted to "investigate" the facts surrounding Judge Neff's attendance at a same-sex commitment ceremony for the daughter of a close family friend. Brownback worried that this revealed Neff's possible bias should she be called upon to adjudicate a constitutional challenge to laws forbidding same-sex marriage.

And third, Brownback was harshly criticized for his proposed compromise in which he would permit Neff to be confirmed, but only if she promised to recuse herself in same-sex marriage cases. Such a commitment in advance would arguably violate separation of powers.

Although I certainly don't share Brownback's substantive commitments on this issue, I wonder whether the procedural criticism has been fair. Suppose an otherwise qualified judicial nominee had attended a ceremony that we liberals find offensive: Perhaps a judge attended a family friend's graduation ceremony in the Ku Klux Klan. (Humor me in assuming the Klan holds graduation ceremonies.) Even though attending in a "personal" capacity, wouldn't this act send a sufficiently alarming message about the nominee's views on civil rights to warrant further investigation before confirming him to a seat on the federal bench? And wouldn't a pledge that the nominee would recuse himself in civil rights cases be better than a simple confirmation without such a pledge?