Why a Judicial Nominee's Virginity Might Actually Matter

We now know that Harriet Miers is a deeply religious individual. She belongs to Valley View Christian Church, which has been described as a "conservative, evangelical church." She was introduced to this church by her close friend and former boyfriend, Justice Nathan Hecht of the Texas Supreme Court. As reported by Michael Grunwald, Jo Becker, and John Pomfret, in the Washington Post:

Hecht remembers that when Miers made partner at their law firm, the first woman ever to do so, she began to question what life was all about. He said they would often put their feet up and trade Big Questions: Is there a God? Who is He? What difference does it make? Miers had attended Episcopalian and Presbyterian churches as a girl, and her mother was religious, but Miers told Hecht she wanted a "deeper faith." Hecht believes she may have supported abortion rights at the time, although he said she had not thought about it much.

"Well, let's go to my church," Hecht told her.

That was Valley View, where Hecht played the organ and taught Sunday school. It was a church, pastor Ron Key said, that believed in "the Judeo-Christian perspective on the sanctity of life" and "the Christian perspective on marriage." There are antiabortion pamphlets inside the church and literature opposing premarital sex. Key and his wife, Kaycia, said they never asked Miers what she thought about those issues, because they never thought they had to.

The question raised by this news is: Does Harriet Miers's religious faith matter? Article III Groupie believes that the answer is yes. Why? Because knowledge of Miers's strong faith is relevant to a far more important question: Might Harriet Miers be a 60-year-old virgin? (For the record, Miers has issued a vigorous denial.)

Does A3G think that there is any truth to this accusation of virginity? She's not sure, but she's leaning in favor of "no." Because of Miers's religiosity, including her membership in a church that distributes "literature opposing premarital sex," it's highly unlikely that she has, shall we say, "violated church teaching" during the 25 years since she joined Valley View. But this doesn't mean that her virtue remains intact. Recall that prior to becoming a "born-again" Christian, Miers lacked a strong religious faith, attending church only sporadically. In light of this fact -- as well as Miers's erstwhile hotness -- it's reasonable to think that Miers may have engaged in "a youthful indiscretion" or two, before she saw the light.

So this conclusion begs another question: Why is a judicial nominee's possible virginity a legitimate topic of inquiry? Most people would say that it isn't. If you look at the reader comments to Jonah Peretti's Huffington Post piece, Bush Appoints 60-Year-Old Virgin to Supreme Court, you'll see that many HuffPo readers got quite worked up over Peretti's post, deeming it offensive, inappropriate, etc. A3G has at least two responses to them, one flippant and one more substantive.

The flippant response: "People, it's a joke! Haven't you ever heard of satire? Are you the kind of people who would read A Modest Proposal and then issue earnest condemnations of baby-eating? Did you read this article, then send an outraged letter to the White House decrying the nominee's lack of experience?"

The more substantive response was previously hinted at by A3G in her own prior post, "Was Judge John Roberts a 41-Year-Old Virgin?" The basic argument is that an individual's personal views on fundamental moral issues -- which are reflected in how that person lives her life -- may very well influence how she decides cases relating to those issues after she becomes a judge. While one can (and should) aspire to an ideal of complete judicial impartiality, in which a judge's personal views play no role whatsoever in their jurisprudence, such a goal is obviously not realistic.

Clearly some exploration of a judge's personal background is proper; the question is one of extent. Can one go too far in probing under a judge's robe? Sure; even A3G will (reluctantly) agree that some inquiries may be excessive and inappropriate. She was, for example, made somewhat uncomfortable by aggressive inquiries into the exact nature of Chief Justice Roberts's Catholic faith.

But here's the flip-side of the argument: If a judicial nominee simply asserts, "I will not let my personal views affect my judicial decisionmaking," must we accept her say-so? Are we somehow required to take that statement at face value, automatically and unthinkingly? If the nominee is a member of the Ku Klux Klan, but repeatedly insists that "my personal views won't affect my judicial decisions," are members of the Senate Judiciary Committee precluded from asking even a single follow-up question?

Obviously a balance must be achieved between legitimate exploration of a judicial nominee's personal history and inappropriate inquiry into a nominee's private life (which might have a "chilling effect" upon people considering judicial service). So here's one possible, perfectly reasonable position: "We generally won't inquire into anything about a nominee's private life unless (1) it can be deemed 'extreme,' 'highly unusual,' or 'very rare,' and (2) it might affect their jurisprudence in a particular area." The first factor measures whether the matter in question is significant enough in terms of "magnitude" to influence the nominee's judicial decisionmaking; the second factor measures whether it is even the "type" of matter that could influence judicial decisionmaking. 

Under this standard, membership in the KKK or some other white supremacist group would be fair game. It's highly unusual and rare, and it might affect the nominee's jurisprudence in the area of civil rights (among others). Something that is less unusual -- for example, the mere fact that the nominee is Catholic -- would not be a proper topic for further exploration. Because it's so normal, even banal, it fails the "magnitude" test. Also off-limits would be something that could have no conceivable effect on the nominee's jurisprudence (e.g., the nominee's favorite color, or top ten movies of all time -- much as A3G is dying to know these things). These facts are not the "type" of facts that are relevant to judicial decisionmaking.

Under this standard, exploring whether a judge is 60 years old and still a virgin is a legitimate topic of inquiry. First, being 60 and a virgin qualifies as "extreme," "highly unsual," or "very rare." According to a recent study of sexual behavior in the United States, conducted by the National Center for Health Statistics, some 97 percent of Americans have lost their virginity by age 45. The percentage of Americans who are no longer virgins by age 60 is, obviously, even higher (unless you believe in this).

Second, lifelong virginity -- and the total lack of interest in sexual relations that it probably reflects -- clearly might affect a nominee's jurisprudence in a whole host of areas, including some of the most controversial, such as abortion and gay rights. Do you honestly think that Lawrence v. Texas would be decided the same way by (1) an openly gay judge with a strong sex drive, and (2) a totally asexual judge with absolutely no sex drive?

In sum, curiosity into a Supreme Court nominee's possible lifelong virginity is not as illegitimate or improper as it might at first seem. So when Harriet Miers goes before the Senate Judiciary Committee, it might not be completely outrageous for Senator Ted Kennedy to ask: "Are you now, or have you ever been, a 60-year-old virgin?"

(Update: Please see the comments for some thoughtful reactions and questions.)

Comments

[Guest]

Cardozo was one of the greatest common law judges of all time, and would have been a greater SCt judge had he lived longer. He never married and may very well have been a virgin. But that doesn't seem to affect his place in the pantheon. (Of course, the Court dealt with far fewer social rights issues in the 1930s, but it's not like it didn't deal with them at all: cases like Meyer v. Nebraska and Pierce v. Society of Sisters came before the SCt in the 1920s, and dealt with an area of life (family) that Cardozo had no personal experience with, but had he been on the Court in those years, should he have recused himself, or would his opinions have been any less persuasive (either way) simply because he had never had a girlfriend?)

[decafdyke]

obvious implications for abortion debates...people on the left have long talked about the importance of letting female jurists weigh in on _Roe_, but a portion of that special female perspective is tied to having at some point needed to face the possibility of getting pregnant. women who aren't heterosexually active [self included] are at something of an empathy disadvantage.

[Lapsed Catholic]

Doesn't your point really just boil down to the intensity of someone's views? You say that just being a Catholic isn't a legitimate subject of inquiry. But what about, say, being a member of Opus Dei?

If yes, isn't that unfair? Doesn't it penalize people who happen to have strong views (e.g. the Opus Dei member), and give people who don't (e.g. lapsed Catholics) a free pass?

[The Duck Hunter]

I see what you're saying about not just taking the nominee's say-so. But the interesting this is: Once someone is ON the Court, isn't that basically what we're stuck with, in terms of the "honor system" approach to recusal? Justice Scalia can say that the duck hunting with Dick Cheney didn't affect his impartiality, and there's not much we can do about that.

[Not-So-Virgin Mary]

A3G, sorry, nice try, but I don't buy it.

Do you really think that being a virgin could affect a judge's views? If so, then what's the difference between the votes and opinions of Justice Souter, who's probably a virgin, and those of his fellow liberal (but non-virgin) justices?

(There's something sort of virginal about Justice Ginsburg too. But we know she's not a virgin because she has two kids, including Columbia law professor Jane Ginsburg.)

[Michael Wasserman]

Vis-a-vis the Catholic question, I think it is appropriate to ask a nominee whether he or she would feel obligated to exercise the powers of his or her office in conformity to the command of a religious leader. That is not necessarily a matter limited to Roman Catholics. Such a question seems particularly apt regarding Roman Catholics given the recent threats of excommunication made by some American bishops.

Vis-a-vis virginity, I think that both the primest virgin and the most lascivous fornicator could appreciate the freedom to choose how to conduct his or her sexual life--if they are satisfied with their choice or able to take responsibility for it. On the other hand, either sort could wish that some authority had saved them from themselves, if they are unhappy with the consequences of their choice.

[J]

Harriet's so busy that she probably had to do without kok today! (see link)

http://www.vvcc.org/CalendarDetail.asp?id=13254