Peter Kirsanow makes a valiant effort to defend her, but I’m not persuaded. The key defect in Kirsanow’s argument, it seems to me, is that it places too little weight on Brown’s speeches. He says that her record as a judge ought to trump those speeches, and that “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.”
So are we to conclude that Brown didn’t mean what she said when she suggested that judges had to apply a law higher than the Constitution? How far would Kirsanow go with this? If a liberal Kerry nominee to the courts had given speeches analogous to the ones Brown gave–or even ones with the exact same phrases–you can bet that conservatives would not be dismissing them as “meanderings and musings” and looking only at her record.