Brownback: Judicial Activism A-OK When It Favors Austere Religious Values

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Senator Sam Brownback, a Kansas Republican who sits on the Judiciary Committee, was holding up a roster of 13 judicial nominees by refusing to vote on the appointment of Judge Janet Neff to a Federal District Court. Yesterday, he relented, agreeing to vote on the nomination.

Brownback was stonewalling, as it were, because he had learned that Neff had attended the (lesbian) commitment ceremony of a longtime neighbor’s daughter. That’s right, Neff was a guest at one same-sex ceremony. Brownback had graciously offered to move forward if only Neff would agree to recuse herself from all cases related to same-sex unions.

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Let’s follow this to its illogical extreme. Any judicial nominee who has attended a party sponsored by Budweiser or Absolut must recuse him or herself from all cases related to the alcohol industry. Any nominee who has hugged a woman or in anyway offered support after an abortion must recuse him or herself from all cases related to Roe v. Wade. And so on.

In some cases, more judicial independence could be a good thing. But Brownback hasn’t taken that position in the past. Indeed, he has supported appointees who had been outspoken opponents of abortion and same-sex marriage but claimed they would rule based on their legal expertise, rather than their personal opinions. Neff, who hasn’t made any outspoken claims supporting or opposing same-sex marriage, has, however, said that her legal expertise would guide her through any decisions on the matter.

What’s more, legal scholars have voiced widespread concern that Senator Brownback’s request that Neff agree, as a condition of his vote, to handle cases in a certain way is unconstitutional.

When (metaphorically) confronted with a copy of the constitution, Brownback was unabashed. He indicated that he needed more reassurance from Judge Neff that her presence at the ceremony did not indicate insurmountable bias. Brownback would now like Neff to testify before the Senate about her neighbor’s ceremony. Neff, and everyone else involved in the private commitment ceremony, are now essentially on trial.

Compare Brownback’s single-handed delay of the Senate’s confirmation process to the suits filed by Gov. Mitt Romney and Vote on Marriage claiming that the Massachusetts legislature violated their right to due process by tabling an anti-gay marriage amendment. It doesn’t take long to see that their homophobia is making a perverse mockery of democracy.

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