Ramesh maintains that my defense of Janice Rogers Brown places insufficient emphasis on the content of speeches in which she does, indeed, comment favorably on natural law as a supertext over the constitution. Ramesh asks whether I’d view similar comments allegedly betraying an activist bent from a liberal nominee as casually as I view Brown’s comments.
As I state in my piece, Brown’s speeches are less troubling than they otherwise might be because her track record as a judge over 10 years provides ample evidence that she is not a judicial activist inclined to permit the themes expressed in her speeches pull her in directions inconsonant with precedent and textual interpretation. Were she nominated from , say, academia without a record of sublimating her personal political philosophies to her job as a judge, her speeches might give greater pause. Besides, 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).
With respect to Ramesh’s question as to whether I’d cut a similarly situated liberal nominee the same slack I purportedly cut Brown–well, if that person had demonstrated the same ability Brown has to decide cases according to the law and not politics or ideology–very possibly.( Although I’d at least seek some assurances during the confirmation process that the nominee’s predilections wouldn’t corrupt strict legal analysis. The confirmation attacks on Brown, on the other hand, are,uh,a bit less sincere). But as Ramesh fully knows, this is not an apples to apples comparison. 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.
Bottom line: her speeches do merit inquiry. After studying her opinions, inquiry resolved in her favor.