Wednesday, March 21, 2018

Controversial anti-LGBT judicial nominee Gordon Giampietro finds a defender at Witherspoon

Randall B. Smith
Randall B. Smith
There is a new post at Witherspoon Institute's blog titled: The New McCarthyism: Religion, Marriage, and Judicial Nominations. Its author is Randall B. Smith. Mr. Smith requires a history lesson. Suffice it to say that an avenue of inquiry that he does not like is not McCarthyism. Witherspoon Institute's pseudo-intellectual blog is edited by Ryan T. Anderson. Anderson is the proprietor of the most overrated intellect in Christendom. Anderson's shortcomings explain much of the content of the blog.

Randall Smith is an easy target. He is a professor of theology at a Catholic college. According to his faculty bio:

Areas of Expertise
Sin, Moral Theology, Urbanism, Abortion, Morality of Youth, Apparitions, Cloning, Contraception, Vatican
Apparitions? Smith, the individual, is inoffensive enough. However, what he has written offends me. It offends me by its intellectual dishonesty. It offends me by its obtuseness. Let us begin:
Imagine an orthodox Jewish woman being interviewed on a Jewish radio program speaking about the Torah and its condemnation of same-sex sexual activity. The woman expresses her agreement with the Torah and adds that, in our pluralistic society, we must respect civil laws and act compassionately toward all people.

Let’s suppose she becomes a candidate for a federal judgeship. Should this woman be allowed to serve? …
Just in passing, “orthodox Jew” is ambiguous. It covers a wide range of people from modern orthodox to various sects of Hasidim.

No one can honestly answer Smith's question because the hypothetical candidate's confirmation is dependent upon many factors. The first question is whether or not she disclosed that radio interview to her state's federal judgeship nominating commission. Having done so, and in spite of the assurance for respect for the law, she has opened a legitimate avenue of inquiry about her ability to be impartial.

But let's get to the heart of this:
Progressivism's Heretics

I raise these questions because Gordon Giampietro, who seems to be a decent Catholic gentleman, has been nominated for a position on the federal bench. Giampietro is being labeled a “racist” and “unqualified to be a federal judge” because he (a) expressed his agreement with the standard Catholic position on marriage on a local Catholic radio show, and (b) appeared to question (in a very brief comment on an article by Hadley Arkes published on a Catholic website) whether our current way of addressing what he called America’s “original sin” of slavery using racial quotas was the best approach. To the contemporary liberal intelligentsia, both of these positions are heretical.
Apparently “decent Catholic gentleman” is a term of art. Giampietro manufactured some of his problems with no help from evil progressives. Giampietro failed to disclose some of his controversial material in his application to the state federal nominating commission. He subsequently claimed that he did not believe them to be relevant.

Frankly it is rather stupid, in this age of Internet transparency, to attempt to obscure anything. Furthermore, the application asked for “non-judicial published writings, including books, articles, reports or other published material you have written or edited, as well as speeches and all social media.” The word “relevant” is absent from that question. Another question asks if there is “any additional information that could be personally or professionally embarrassing.”

After the fact, Giampietro said something to the effect that he was not embarrassed by his Catholic faith. That is dishonest. It's not the issue. I am not embarrassed by anything I write. However, were I to re-enter the job market (I won't) this entire blog could be embarrassing.

More importantly, unlike the unlikely hypothetical orthodox Jew, Giampietro never assured anyone of the importance of complying with civil law. In fact, he did just the opposite. In a radio interview Giampietro told his audience that they should read the Supreme Court’s decision. He further said they could “ignore Justice Anthony Kennedy’s opinion, because it’s not really legal reasoning.” According to him, Justice Kennedy “went off the rails years ago” with his 2003 opinion in Lawrence v. Texas, which struck down Texas’s sodomy law. None of that speaks to respect for the law.

The fact that this was at a Catholic outlet is less relevant than the opinions expressed. The makeup of the audience is not as important as the fare they are offered.

The issue these statements and others raise is whether or not LGBT people could get a fair shake before Giampietro as a federal judge. In the same interview, he said that the Obergefell ruling was “an assault on the conscience rights of all Americans.” That represents a legal view. Randall B. smith would have us ignore this because Giampietro is a “decent Catholic gentleman.” No sir. It doesn't work that way. He also said, in the same interview:
No one would disagree with the fact that children, all the social science research shows this, are best raised by a man and a woman. This is natural, this is the truth, and it’s irrefutable. And so I think it has to be articulated in a way which isn’t dismissive of those troubled relationships, but it is reaffirming of the truth of marriage.
That is neither a religious belief nor a statement of faith. It is blatantly false and based on a false understanding or a false presentation of research on parenting. He then falsely claims that his opinion is irrefutable and he posits that gays are in “troubled relationships” — all of us it would seem.

The notion that this does not provide a fair line of questioning is patently absurd. The idea that this represents a form of McCarthyism is intellectually dishonest, intellectually offensive and, frankly, mystifying. Those statements reflect prejudice and bias and Randall B. Smith has the balls to criticize those asking pertinent questions.

It's not just LGBT issues that raise questions. Giampietro has been critical of the Civil Rights Act of 1964. He claimed that “calls for diversity” are “code for relaxed standards.” Randall B. Smith would presume to lecture us about awful progressives for thinking that Giampietro's views on race require some questions and answers. Nonsense.

Keep in mind that Smith is not complaining about a rejection of Smith as a nominee (he is still awaiting confirmation). Smith is complaining about people asking some difficult questions of someone seeking a lifetime appointment as a federal judge. I think that Giampietro is a bigot and religion is no excuse. However, I am not a US senator who must judge his suitability.

But Smith doesn't stop there:
Justice Kennedy’s Empty Promise in Obergefell

In that famous Obergefell decision, Justice Kennedy pledged that
religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.
It is not an empty promise. People are free to believe as they choose. They are free to disapprove of same-sex marriage. We are not soliciting approval. We do not care. However, since Obergefell conservative Christians have engaged in all manner of behaviors to obstruct and frustrate the constitutional rights of gay people.

Robert P. George started a nullification campaign. George is a professor of jurisprudence knowing full well that nullification is unconstitutional. People like Kim Davis and Roy fucking Moore have violated their constitutional obligations to keep gay couples from marrying. There is an unfortunately endless list of Defenders of the Faith who have acted at the expense of gay people.

And let me remind Mr. Smith that none of these people were affected, in any way whatsoever, by same-sex marriages. They have a religious objection and that takes precedence over the rule of law. Justice Kennedy never wrote anything that could be interpreted to license the bigoted endeavors of George, Davis or Moore. Suggesting otherwise is dishonest.

Smith is painfully verbose. His prose is bloated and I am skipping over a substantial amount of material. He goes on to write:
Un-American Activities, Political Liberalism, and the Dissolving "Overlapping Consensus"

Are we not witnessing the contemporary equivalent of the old question used to disqualify suspect persons from government service: “Are you now, or have you ever been, a member of the Communist Party?”

“Gordon Giampietro, are you now, or have you ever been a faithful Catholic?” Such views are now considered “un-American,” “out of the mainstream.” …
Mr. Smith is indulging in the logical fallacy of begging the question. We barely get there because he is dishonestly re-framing the relevant question. Were I on the Senate Judiciary Committee, I might ask:
Mr. Giampietro, you have said all of these controversial things. No one is telling you what to personally believe. How can you assure us that your judicial decisions would be separate from your religious beliefs?
More specifically I might ask:
Do you accept the fact that the ruling in Obergefell v. Hodges constitutes the law of the land?
Is there anything unfair about those questions? Ultimately, those represent just two of the issues that confront the Senate. I have not even mentioned Roe v. Wade or even his disparagement of contraceptives. Giampietro's extremist views are not the issue. The real issue is his potential temperament and neutrality as a federal judge which is a lifetime appointment.

Keep in mind that in his entire career Giampietro has only litigated 31 cases including many where he was not the lead attorney. I do not know what he did as an assistant US attorney for 13 years but it did not seem to involve going to court. There is not much of a track record to learn from.

Getting through a considerable amount of bloat, Smith's closing sentence is revealing:
It has become so common, so much a part of the expectations of liberal progressivism, that any suggestion a judge might not do his or her part to “push the envelope” is taken as a sign of judicial incompetence and a betrayal of judicial duty.
Bullshit. No one is asking a nominee if he or she is willing to push the envelope. Neutrality and honoring Supreme Court precedence will suffice. Giampietro is not a martyr for the faith. He has not been persecuted and he is not a victim. He has not been treated unfairly. If nothing else he was ill-prepared to address matters that he knew, or should  have known, would come out. Some of this is the fault of a very sloppy Trump administration which fails to vet and then to prepare its nominees.

Whether or not Giampietro is a “decent Catholic gentleman” remains to be decided. Much depends upon one's definition of decency. Bigotry is indecent even when supported by religious dogma.

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