Peter: Let me just comment on one of your subpoints. “Brown is not the first judge to cite natural law in this regard. Clarence Thomas, among others, has done the same and his track record in adhering to the applicable law in the case before him is well known (and not dissimilar from Brown’s). . . . Conservative nominees who, in their non-judicial commentary, tip their hat to natural law have generally proven themselves to be more disciplined in checking their ideology at the courthouse door than liberal nominees who tip their hat to a living breathing constitution.”
Kirsanow is surely right to say that a good record can trump a bad speech. But there’s natural-law commentary and then there’s natural-law commentary. I think Brown’s comments were more troubling than Thomas’s pre-confirmation remarks. Thomas, recall, basically said something nice about an article by Lew Lehrman in Lehrman’s presence. He did not suggest that the natural law authorized judges to overrule the positive law; I find it hard to see how Brown’s comments can be read to mean anything other than that. (Nor has Justice Thomas engaged in objectionable forms of “natural-law judging,” with the possible exception of his concurrence in Adarand.)
In Brown’s defense, I would say, however, that her apparent willingness to rethink incorporation mitigates the problem as far as I’m concerned (although it will, of course, make the problem worse for liberals). As an appeals-court judge, of course, she could/should neither roll back incorporation nor indulge in any “higher law” activism. If she were on the Supreme Court and did both, the net effect might well be to reduce the relative power of judges.