Duck Season

I agree with "Juan Non-Volokh" at the Conspiracy:

If this is in fact the standard – if some of Pryor’s opponents believe that deeply felt, religiously inspired opposition to abortion, disqualifies a nominee for confirmation to the federal bench – then it is the functional equivalent of a “Catholics Need Not Apply” sign, in that it will bar devout Catholics who follow church teachings (among others) from the federal bench. This does not, however, justify accusing Pryor’s opponents of anti-Catholic bigotry, as such. I have seen no evidence that attacks on Pryor are motivated by anti-Catholicism. Nonetheless, I do not think it is inappropriate for Pryor’s supporters to note that the position articulated by some of Pryor’s most vocal opponents would, in practice, exclude devout Catholics and others who believe abortion is murder due to their religious faith. If pointing out this fact makes some of Pryor’s opponents uncomfortable, so be it. If they cannot live with the logical implications of their position - a position which is quite extreme given the division in the country and the legal academy over abortion and the legitimacy or Roe (see Larry Solum's post here) - they should reconsider their views. Again, however, Pryor’s defenders should be careful to distinguish their defensible claim – the abortion litmus test adopted by some discriminates against devout Catholics and other religious groups – from the indefensible claim – Pryor’s opponents are anti-Catholic bigots. [emphasis in original]

In my view, the real question should not be whether an individual nominee has deply felt religious beliefs about abortion, homosexuality, the death penalty, or some other controversial issue. Rather, it should be whether a given nominee is capable of separating their personal views from the their obligation as a judge – whether, for instance, an anti-abortion judge could nonetheless faithfully apply Roe and other relevant precedents, or whether an anti-death penalty judge could nonetheless faithfully apply laws providing for capital punishment. I believe Pryor’s record as Attorney General suggests he is capable of this, but I respect that reasonable minds may disagree. The point is that the confirmation debate should focus on a nominee's qualifications to be a judge, not their personal religious or ideological views. In my opinion, insofar as some of Pryor's critics are imposing an abortion litmus test on judicial nominees, they have reaped what they sowed.