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Bench Memos

NRO’s home for judicial news and analysis.

The Post and Justice Brown



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The Washington Post, like so many of Justice Janice Brown’s critics, seems to conflate Justice Brown’s political and legal views. (Incidentally, this is the substance of many of the attacks on Judge William Pryor as well.) The underlying assumption is that if Brown opposes affirmative action or the growth of the welfare state, she necessarily would seek to enact her views from the bench. This view not only does a disservice to Justice Brown’s record as a judge, it suggests that only those without political perspectives (or who share the political preferences of the Post) are suited to the bench. One of a judge’s most important responsibilities is to put aside his or her own political preferences and to apply the law in as neutral and fair a manner as possible. Are judges capable of setting aside their personal views? Yes. One only need look as far as yesterday’s Supreme Court opinion in Gonzales v. Raich for several examples. In that case, it is clear that at least two of the justices voted for a holding that produced an outcome prior to their personal policy preferences. If the Post wants to make the case against Brown, it has to show that she is incapable of doing the same. It’s not enough that she has strong and independent political preferences of her own.



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