Normally, a judicial confirmation hearing before the Senate Judiciary Committee–even one that promises to be contentious–starts out with a few niceties. A senator from the nominee’s home state says good things about him or her, the chairman asks the nominee’s family to stand and be recognized, a few compliments are spread around–that sort of thing. Then the bloodletting gets under way.
That’s the way it’s done normally. But it was not how it was done Wednesday, at the hearing for Janice Rogers Brown, a nominee for the D.C. Circuit Court of Appeals. First of all, even though Brown lives in California–she is a justice on the state supreme court–neither of her senators, Democrats Dianne Feinstein and Barbara Boxer, chose to say anything on Brown’s behalf. With no senatorial courtesies to get things started, both sides dispensed with the pleasantries. The fighting began literally in the first few seconds of the hearing.
“The last nominee considered for this court–Miguel Estrada–was treated shamefully by this committee,” chairman Orrin Hatch said, starting things off. “He was badgered for adhering to the Code of Judicial Ethics; his record was distorted; and he was attacked for withholding information that he could not provide…Many are proud of that fact, but I think it was a sad day for this institution.”
Hatch went on to blast a similarly aggressive campaign now under way against Brown. The fight will be particularly intense, Hatch said, because Brown “is a conservative African-American woman, and for some that alone disqualifies her nomination to the D.C. Circuit, widely considered a stepping stone to the United States Supreme Court.”
Hatch then did something that put Democrats on the defensive for much of the day. Brown is opposed by a number of old-line civil-rights groups, and her nomination has been greeted with sometimes-vicious criticism in the black community. To illustrate that, Hatch unveiled a blow-up of a cartoon that had appeared on a website called BlackCommentator.com. The cartoon portrayed Brown as a fat black woman with huge lips, an unruly Afro, and an enormous backside. In the cartoon, President Bush is introducing her to other blacks in government. “Welcome to the federal bench, Ms. Clarence…I mean, Ms. Rogers Brown,” the president says. “You’ll fit right in.” To the side, Supreme Court Justice Clarence Thomas, Secretary of State Colin Powell, and National Security Adviser Condoleezza Rice stand applauding.
“Now I want to make clear that I am not referring to any of my colleagues here on the committee,” Hatch said as he revealed the cartoon. “But let me show you what I am talking about–an example of how low Justice Brown’s attackers will sink to smear a qualified African-American jurist who doesn’t parrot their views. I hope that everyone here considers this cartoon offensive and despicable.”
Everyone did, or at least said they did. For the rest of the hearing, Democrats repeatedly condemned the cartoon and asked Hatch to remove it from display. He declined, and it remained on an easel beside the dais.
After Hatch finished, Illinois Sen. Richard Durbin, who was leading the Democrats at the hearing, started his remarks by suggesting that Brown did not live close enough to Washington to merit appointment to the D.C. Circuit. Noting what he called “the oddity of President Bush going 3,000 miles away from Washington D.C. to pick a judge for the D.C. Circuit,” Durbin said that Brown has “zero background in D.C. or with federal agencies,” which he suggested was itself enough to disqualify her for the job. Of course, the D.C. Circuit is virtually a national court, ranking just below the Supreme Court, and Democrats dropped their line of attack when Republican Sen. John Cornyn pointed out that “presidents traditionally look across the nation for individuals to serve on the D.C. Circuit,” and that judges from South Carolina, Michigan, and Colorado have been appointed to the court.
Then Durbin got down to the business of attacking Brown’s record. “You are the lone dissenter in a great many cases involving the rights of discrimination victims, consumers, and workers,” he told Brown. “In case after case, you come down on the side of denying rights and remedies to the downtrodden and disadvantaged.”
Durbin then began a long series of accusations against Brown that sounded very much like a prosecutor’s brief. Brown was insensitive to victims of housing discrimination. She was insensitive to victims of disability discrimination. She was insensitive to victims of age discrimination. And so on.
It was, even by the standards of Judiciary Committee hearings, a pretty tough opening statement. As Durbin finished, Pennsylvania Republican Arlen Specter asked to be heard.
“I don’t like the way this hearing has started,” Specter said. “It seems to me that Justice Brown has been convicted without a hearing.” Referring to Durbin’s list of charges, Specter added, “That would be a good closing prosecutorial case, not an opening one.”
Through it all, Brown sat quietly. And she had to sit quietly for several more minutes, as senators argued back and forth, before Hatch turned to her for an opening statement. She hadn’t planned to give one, she said, but she did want to say a few words about the cartoon on display a few feet from her. “People have said to me, ‘It’s not personal, it’s just politics,’” Brown said. “Well, I am here to say it’s very personal to the nominees and the people who care about them. I can’t tell you how distressing it is to see this cartoon.” Then, in a way that might be described as judicious, she defended the cartoonist’s First Amendment right to attack her.
The cartoon episode seemed to set Democrats back on their heels a bit. While they continued to attack Brown, they did so with a little less edge than they might otherwise have done. They also seemed somewhat uneasy with Brown’s life story and her open discussion of what her family’s values had meant to her growing up.
Brown was born in 1949 to a family of sharecroppers in Greenville, Alabama. She described a family with a “firm and stern” set of values that placed great emphasis on hard work. Her grandmother, Brown said, encouraged her to do her best–even if it was just as a dishwasher–and not complain. The family was not big on complaining.
“If my family had a motto, it would be ‘Don’t snivel,’” Brown said. “We had a very clear sense of right and wrong.”
Brown ultimately moved to California and received a law degree at the University of California law school. In the years that followed, she worked for the state legislature, the state attorney general’s office, and former governor Pete Wilson. In 1996, she was appointed to the state supreme court, and in 1998 she was retained in a statewide election, winning 76 percent of the vote.
It was an impressive record, even if one had not started out black in 1950s Alabama. But at times Brown’s obvious sense of self-reliance and her disinclination to rely on government to solve society’s problems seemed to trouble Democrats. On several occasions, Democrats cited passages from writings in which Brown criticized the role of government regulatory and civil rights agencies. For example, Durbin read a portion of an opinion in which Brown, in discussing California’s anti-discrimination agency, wrote that, “Not only are administrative agencies not immune to political influences, they are subject to capture by a specialized constituency.” While that might seem fairly tame and self-evident to some observers, to Democrats it suggested that Brown harbored an implacable “hostility” to government itself.
“I am troubled not only about your hostility to our nation’s constitutional tradition but also your hostility to the federal government,” Durbin said. “Given your hostility to the federal government and its role in our lives, your nomination to the D.C. Circuit is ironic.”
Much of the discussion that followed centered on the role of government in issues like affirmative action, housing, and the rights of criminals. At times, Democrats did not seem to know the details of the cases Brown had decided–she often had to remind them what issue was actually being decided in a particular case–but they suggested that her opinions somehow reflected an insensitivity to the “downtrodden and disadvantaged.”
In the end, what was striking was how little Democrats seemed inclined to dig into the actual questions involved in the cases Brown has decided; each time Brown delivered a crisp defense of her reasoning, Democrats simply moved on to another sound bite. It was as if Durbin and his colleagues had chosen to make a series of short-form attacks, get the hearing out of the way, and then move on to the more serious matter of filibustering Brown’s nomination.