Criticizing the Bush administration because it “has made ideology the primary consideration in picking judges,” the New York Times today called upon the Senate to … make ideology the primary consideration in picking judges. “Senators are shirking their responsibility,” editorialized the NYT, if they approve nominees “who have not demonstrated … that their judicial philosophies will take the country in the right direction.”
I will leave for another day a discussion of the NYT’s unappealing notion that it is judges who should determine the direction of the country. What concerns me today is that in its apparent zeal to torpedo McConnell the Times sloppily mischaracterized a Supreme Court case, a case in which it was so blinded by its approval of the result that it failed to see the disturbing — and threatening implications for the Times’s own sometime values — of its reasoning. In other words, it judged the case the same way it judges McConnell: with a hasty, superficial, and misguided concern only for the immediate political result. Such are the pitfalls of a result-oriented instead of a principled jurisprudence.
According the NYT editorial,
Mr. McConnell disapproves of the Supreme Court’s decision in the 1983 Bob Jones University case in which the justices rightly decided that banning interracial dating among the college’s students was racial discrimination. He would require the government to subsidize, through tax deductions, schools like Bob Jones.
First, the justices did not “decide” that banning interracial dating among the college’s students was racial discrimination (largely a moot question in any event, since black students stayed away from Bob Jones U. in droves because of policies like this). Of course it was; the question of whether or not it was racial discrimination was not at issue. The issue was how to interpret Section 501(c)(3) of the tax code, which provided that “religious, charitable, or educational” institutions could qualify for a tax exemption. Bob Jones maintained that it was both religious and educational and so clearly deserved an exemption. The IRS argued that it could not be charitable since it preached discrimination (there was little or no proof of practice in the record), and so did not.
The plain text supported Bob Jones. The qualifying categories are linked with the disjunctive “or,” not the conjunctive “and,” which at least as a grammatical matter means that an organization could qualify if it were any one of the three, not that it would have to be two or more. But courts are often unrestrained by the apparent limitations placed by plain language, and that was the case with the Supremes here, in large part because the IRS made a persuasive argument that the whole nature, purpose, and structure of the tax exemption scheme was suffused with the general requirement that some “public benefit” be served, and it was not frivolous to maintain that even preaching discrimination served no public benefit.
But there is much more to Bob Jones (the case, not the school) than the public benefits of interracial dancing. Among other things, this decision resulted in reducing the power of Congress, which wrote the statute, and the courts, which interpret it, in favor of the executive agency with the responsibility of enforcing it. The New York Times does not generally celebrate the deference of Congress and courts to the enforcement whims of the executive branch.
Much more ominously, the Court, unnecessarily, went far beyond allowing the executive branch to withhold tax exemptions to any organization whose “public benefit” it questioned. In addition to requiring that tax-exempt organizations must provide some “public benefit,” the Court went further and also held that their purposes must not conflict with “common community standards,” that they be in harmony with the “common community conscience.” And the content of that conscience will be determined by the executive branch acting through the IRS.
Thus the Times, mindful only of the immediate result of the bad guy Bob Jones losing, has mindlessly embraced — and indeed held out as a litmus test for judicial appointment — a sweeping expansion of executive authority whose reasoning and rationale would support the IRS, if in its judgment their principles or practices violated “public policy,” revoking the tax exemptions of, for example:
• a museum that displayed the work of Robert Mapplethorpe;
• Planned Parenthood, and other organizations that advocate or perform abortions;
• non-profit organizations that advocate peace in a time of war;
• private universities and foundations, such as the Bill Gates Foundation, that give awards and grants restricted by race.
Michael McConnell would be a much better defender of the principles the New York Times occasionally and selectively trumpets than is the Times itself.
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ADDENDUM 1 – I neglected to address the editorial’s assertion that McConnell “would require the government to subsidize, through tax deductions, schools like Bob Jones.” I am tempted to respond polemically, which is all this comment deserves, but I will restrain myself and say only that this charge is nothing more than ad hominem horsefeathers.
With some difficulty I will also refrain from a long discussion of whether the government’s decision not to tax something amounts to a government subsidy. Reasonable people can disagree about this, but in my view tax restraint does not amount to a subsidy. To say it does is to say that the government is subsidizing every church, synagogue, and mosque in the country. Much to the chagrin of some, the government simply can’t tax every financial transaction that takes place, and it makes no sense to say that it subsidizes all activities it doesn’t tax. If a father gives a daughter $50 to attend a Gay Pride event, is the government subsidizing the promotion of homosexuality because it (so far) has refrained from taxing that gift? My wife, Jessie, and I are spending an ungodly amount of money for Jessie to attend Bryn Mawr (which, in its wisdom, does not offer merit aid). If the Times were right, we should thank our government for subsidizing us since, in its beneficent generosity, it has so far refrained from taking all of our assets in taxes.
I can’t speak for Prof. McConnell, but I’m confident that he would find the charge that he would require the government to subsidize Bob Jones et al. risible. I suspect, however, that he would give Congress, not the courts or the executive branch, the responsibility for writing tax legislation. I’m also confident that as a judge he would be reluctant to hand over to the IRS, without Congressional authorization, the authority to deny tax exemptions to all organizations that it thought violated public policy or offended the community conscience. I strongly suspect the Times would support Judge McConnell in this reluctance the first time the IRS, acting on principles the Times now endorses, moved to take away the tax exemption from an organization it likes.
ADDENDUM 2 – I also posted a discussion of Bob Jones back in June, here. One thing I noted there was that a group of Congressmen had attempted to overturn the IRS ruling denying exemptions to discriminatory schools. One of them was Al Gore.