Senate Filibuster and (Non-)Religious Test?

According to Article VI of the US Constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Some conservatives are starting to argue that Democratic opposition to Bush’s judicial nominees (and for that matter Bush Sr.’s and Reagan’s) amount to discrimination against religoius conservatives. As we’ve noted before, some conservatives chalk this up to the judicialization of American political life, and Roe v. Wade in particular.

They argue that Democrat’s have imposed a religious test to discriminate against religious conservatives.

This is the argument of Winfield Myers at the Democracy Project (and here) and Professor Bainbridge, as well as a few others.

No Democrat has come out and said that he or she opposes nominees on the basis of their religion. Rather, they point to their positions on various hot button issues like abortion.

For Bainbridge, this amounts to discrimination on the basis of “disparate impact.” This means that enough religous people happen to agree with the nominee’s opinion on abortion, so discrimination against pro-lifers implies discrimination against religious people (who happen to be pro-life). Discrimination exists, but it is unintentional.

For Myers and some people he cites, opposing a nominee pro-life position is simply a ruse for an unstated intentional discrimination.

These two modes of argument are commonly used in the US, but moreso by leftists over things like affirmative action and wealth redistribution.

On the “disparate impact” side, the argument’s been used against various free market policy positions because, though not intentionally discriminatory against African-Americans, have adverse impact on them because such policies adversely effect the poor, and many African-Americans are poor.

The “ruse” argument is often slapped against those who oppose affirmative action. Some leftists regard opposition to affirmative action as a genteel form of intentional discrimination against African-Americans.

I suspect Democrats oppose Bush’s nominees not because some are religious or even conservative, but rather that they’re religious conservatives. For example, you wouldn’t see them discriminate against Martin Luther King, Jr., because his religiously informed political views would dovetail with their political views.

It’s unfortunate to see supporters of these nominees make these types of arguments because both fail to address the issues of the nominees’ actual records, and they don’t address the merits (and faults) of Democrats’ complaints against the nominees.