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The Dems’ Post-Nuclear Nightmare
The problem of Janice Rogers Brown.


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Peter Kirsanow

To Democrats, Janice Rogers Brown is the scariest nominee to the D.C. Circuit Court of Appeals in the history of the republic. Since her nomination nearly two years ago, she has been the subject of the most vitriolic and persistent attacks ever leveled against a nominee to the federal bench other than Robert Bork and Clarence Thomas.

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The black sharecropper’s daughter, born in segregated Alabama, has been excoriated as a closet member of the Ku Klux Klan who, at least according to the Senate minority leader, would like nothing better than to return America to “Civil War days.” Left-leaning political cartoonists depict her as an Aunt Jemima on steroids, complete with exaggerated physical features typically found only in the racist literature distributed by hate groups. She’s been called insensitive to the rights of minorities, the plight of the poor, and the difficulties of the disabled. Her opponents warn that she is “the far right’s dream judge” and that “(s)he embodies Clarence Thomas’s ideological extremism and Antonin Scalia’s abrasiveness and right-wing activism.” And her opponents are plentiful, a who’s who of Left-wing advocacy groups: Planned Parenthood, Americans United for the Separation of Church and State, NAACP, NOW, People for the American Way, National Abortion Federation, Feminist Majority, and the American Association of University Women, just to name a few.

SCOTUS on the Mind

What’s driving the hysteria? Three things: demographics, abortion (more specifically, the doctrinal approach that produced Roe v. Wade), and impending Supreme Court vacancies.

As Professor Steven Calabresi of Northwestern University Law School has noted, Democrats are determined “not to allow any-more conservative African-Americans, Hispanics, women or Catholics to be groomed for nomination to the High Court with court of appeals appointments.” And John Leo observes that abortion politics also is driving the opposition to filibustered nominees like Justice Brown.

As I noted in an earlier piece, pro-life minority nominees represent the perfect storm for Left-leaning opposition groups: non-conformist role models from the Left’s most reliable voting blocs who may one day be in a position to reconsider Roe v. Wade. In that regard, Janice Rogers Brown could well be the Storm of the Century: A black female who has been nominated to the court viewed as a springboard to the Supreme Court and who may not view Roe as the zenith of constitutional jurisprudence.

Thomas Sowell adds the kicker: “What really scares the left about Janice Rogers Brown is that she has guts as well as brains. They haven’t been able to get her to weaken or to waver. Character assassination is all that the left has left.”

Indeed, Justice Brown’s intelligence and steadiness are plainly apparent throughout the scores of California-supreme-court opinions she’s written over the years. Their lucidity and precision reveal a person unlikely to go searching for penumbras and emanations; someone disciplined in interpreting the nation’s laws without resort to European precedent or, as Justice Thomas puts it, “the faddish slogans of the cognoscenti.” Put simply, Janice Rogers Brown’s copy of the Constitution doesn’t have a respiratory system.

Some of Brown’s detractors dress up their opposition in legal garb. They contend that she “disregards legal precedent” but fail to cite a single case in which she’s overturned existing law. They also allege that she lacks the qualifications to be a judge, ignoring ten stellar years on the California supreme court.

The biggest howler, however, is the claim that Brown “disregards the will of the people as expressed through their legislators.” This, despite the fact that she dissented when the California supreme court struck down the will of the people (as expressed through their legislators) requiring parental notification in the case of a minor’s abortion. Moreover, Brown wrote the main opinion upholding Prop. 209–the referendum outlawing racial preferences that was overwhelmingly supported by the people but rabidly opposed by many of the same groups now opposing Brown’s nomination. California voters duly punished Brown for disregarding their will by returning her to the supreme court with 76 percent of the vote.

The Substantive Critique

The only charges against Brown meriting serious consideration were posed by Stuart Taylor in a May 2, 2005, National Journal piece in which he examined Brown’s nomination and described her as “a passionate advocate of a radical, anti-regulatory vision of judicially enforced property rights far more absolute than can be squared with the Supreme Court precedents with which judges are supposed to comply.” (NR’s Ramesh Ponnuru has made some similar criticisms.) Taylor’s description is largely based upon a review of two speeches given by Brown a few years ago and her dissent in San Remo Hotel v. San Francisco.

Taylor acknowledges that in her confirmation testimony Brown pledged to follow precedent, even when she disagrees with it, but he maintains that Brown has commented favorably on Lochnerism. (“Lochnerism” is a term derived from the 1905 case Lochner v. New York that struck down, on specious 14th Amendment grounds of economic liberty and “freedom of contract,” wage and hour and worker-protection laws. Among other things, “Lochnerism” maintains that the state police power shouldn’t regulate private commercial transactions. In some ways Lochner is the obverse of Roe). Brown has stated clearly that she doesn’t support a return to Lochner.

Taylor cites Brown’s San Remo Hotel dissent to suggest that she might invalidate laws that have the effect of redistributing wealth. He argues that such a radically expanded view of judicially protected property rights is simply another form of judicial activism–one that trends toward the libertarian/conservative side of the philosophical spectrum–but activism, nonetheless. To drive the point home, Taylor asks, “How would Republicans react if a Democratic president nominated an advocate of radical redistribution of wealth or Marxism?”

Taylor’s critique, the best by far regarding Brown, is thoughtful and substantive, but suffers from at least two infirmities: First, Taylor places too much weight on Brown’s speeches. While sentiments expressed in a nominee’s speeches may illuminate how that person may behave as a judge, in Brown’s case we’re not operating with a blank slate. She’s compiled an extensive library of opinions while serving on the California supreme court the last ten years. That record reveals a judge committed to steadfast adherence to precedent and textual interpretation. There’s nothing in her opinions, including that in San Remo Hotel, outside of the legal mainstream. Critics who charge that Brown might give in to Lochnerian impulses if she were elevated to a United States Supreme Court unchecked by appellate review should consider that her position on the California supreme court provided numerous opportunities to be a judicial activist, yet she took advantage of none of those opportunities. Besides, if one’s philosophical meanderings and musings in speeches, debates, or lectures are presumptive of how such nominee will rule as a judge, 90 percent of those who’ve ever taught a law-school class, given a luncheon address, or participated in an ABA panel discussion would be disqualified. Only the intellectually incurious would remain.

Second, Taylor’s reading of Brown’s San Remo Hotel dissent finds an urge to radically expand property rights where others find an unremarkable interpretation of the California constitution’s comparatively broad takings clause.

San Remo Hotel involved San Francisco’s hotel-conversion ordinance that requires owners of hotels that serve the poor, elderly, and disabled to pay a substantial fee to the city whenever the owners seek to convert their property to tourist use. The fee, amounting to 80 percent of the construction costs of the units to be converted, would be paid into the city’s Residential Hotel Preservation Fund for the poor. Taylor suggests that Brown’s dissent from the majority opinion upholding the law indicates she “would invalidate laws redistributing wealth from one group to another.” Obviously, such invalidation could affect much New Deal and Great Society legislation, including Social Security and Medicare.

But Brown’s dissent is not nearly so expansive. Rather, it’s wholly consistent with mainstream (although, admittedly, libertarian-leaning) jurisprudence that holds that broad societal burdens may not encumber the property rights of a discrete or insular class of individuals. Moreover, Brown was referring only to laws pertaining to real property rights, not legislation that may otherwise have the effect of redistributing wealth (Social Security, etc.).

Janice Rogers Brown is no extremist. She’s tough, smart, principled, and conservative. She’s the embodiment of everything that challenges the worldview of liberal elites. Teamed with a Justice Thomas on the U.S. Supreme Court, she would threaten the Democrat political imperatives cited by Professor Calabresi. Teamed with justices that don’t embrace the doctrines of a “living, breathing constitution,” she would threaten the political imperatives cited by John Leo.

Two sitting Supreme Court justices are in their 80s; two are in their 70s. Retirement naturally beckons. There could be as many as four high-Court vacancies in the next few years. Nuclear winter fast approaches the Left.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the position of the Commission.



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