The Washington Post’s editorial today advocating the rejection of California supreme court justice Janice Rogers Brown’s nomination to the D.C. Circuit labels Brown a conservative judicial activist and asserts that “[n]o senator who votes for her will have standing any longer to complain about legislating from the bench.” It would be tempting to dismiss the Post’s editorial on the ground that the Post, having voiced no objection to liberal judicial activists, is hardly in a position to preach about judicial activism. But such a dismissal would not deal squarely with the Post’s argument.
I have not reviewed Justice Brown’s record and therefore am not in a position to offer my own assessment. (See Peter Kirsanow’s thorough defense of Brown.) But it is striking how feeble the Post’s evidence in support of its charges is. The Post claims that Brown has “openly embraced the ‘Lochner’ era of Supreme Court jurisprudence”–the era from 1905 to 1937 in which the Court used “substantive due process” to invalidate economic legislation. But in fact Brown has written that the “Lochner court was justly criticized for using the due process clause ‘as though it provided a blank check to alter the meaning of the Constitution as written.’”
The Post also criticizes one of Brown’s dissents in a case that presented a challenge under the Takings Clause of the California constitution. The Post seems not to understand the world of difference between giving force to a provision, like the Takings Clause, that is plainly meant to protect property rights and reading into the Due Process Clause (which provides merely that no state shall “deprive any person of life, liberty, or property, without due process of law”) absolute substantive protections for whatever interests a judge happens to favor.
If this is all the Post can muster against Brown, it has provided no reason for any senator to vote against her nomination.