Sen. Brownback's Litmus Test

Tuesday, October 17, 2006

IF YOU THOUGHT that fights over judicial nominations couldn't get any worse, consider the case of Janet T. Neff, whom President Bush has nominated to a federal district judgeship in Michigan. Judge Neff, who serves on the Michigan Court of Appeals, is part of a multi-judge deal between the White House and Michigan's two Democratic senators resolving a long-standing fight over federal court nominees from that state. Yet in reaching an accommodation with the home-state senators, Mr. Bush finds himself with another problem. For Judge Neff, it turns out, once attended a commitment ceremony for a lesbian couple -- and that has Kansas Sen. Sam Brownback (R) reaching for the smelling salts and blocking the nomination.

Mr. Brownback has said he wants to satisfy himself that the judge was not presiding over an "illegal marriage ceremony" in Pittsfield, Mass., in 2002 -- before the state legalized same-sex marriage. He has written to Judge Neff asking for an explanation, his spokesman says, and will hold up her nomination until he learns the nature of the ceremony and its legality. "It seems to speak about her view of judicial activism," the senator told the Associated Press.

In fact it does nothing of the kind. A commitment ceremony is not a marriage; it has no legal force whatsoever but is a private expression of the love and devotion of two people. The idea that such a ceremony could be "illegal" is deeply offensive; Americans are entitled to gather, speak, celebrate and worship as they see fit. An administration official says Judge Neff has told Mr. Brownback that she didn't preside. But even if she did, that would say nothing about her jurisprudential views -- merely that she wished to help a couple recognize their relationship informally in the absence of state sanction for it. Keeping Judge Neff off the federal bench over such a matter is perilously close to declaring her unfit to serve because she has lesbian friends.

It also does a disservice to Mr. Bush. We have criticized Democrats for obstructing qualified judicial nominees; it is no more acceptable when Republicans do it. In this case, Mr. Bush has finally reached a compromise with Michigan senators to ease one of the more intractable irritants in the wars over lower court nominations. Judge Neff is a piece of that deal, all of which could get derailed if Mr. Brownback does not back off.

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