Social Studies June 2005

To Confirm Their Judge, Republicans Abandoned Their Ideas

To listen to Republicans defending Janice Rogers Brown, you would almost think she was Walter Mondale. Lacking was any defense of her views.

In floor debate on June 8, Sen. Trent Lott, R-Miss., mused, "I don't think this has been one of the Senate's proudest hours." As he spoke, the Senate was preparing to vote along party lines to confirm California state Supreme Court Justice Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit, after one of the fiercer confirmation battles Washington has seen recently. Actually, the Brown debate was a good one: passionate, well briefed, and more revealing than most. But it revealed less about Brown than it did about the Republicans who confirmed her.

Brown is a remarkable woman. She is the daughter of an Alabama sharecropper, as the Republicans repeated ad nauseam. She rose from a segregated childhood to become a prominent jurist with a sizzling pen and fierce convictions. Her worldview is that of an uncompromising libertarian, particularly as concerns property (or economic) rights. Property and contract are, for her, the lifeblood of liberty; and when, in the late 1930s, the country and the Supreme Court began treating property rights cavalierly, they set loose an inexorably advancing leviathan state. To Brown, moreover, it makes no sense to treat speech and privacy rights as sacrosanct but property rights as trivial, when the Founders viewed all those rights as of a piece.

More striking than Brown's philosophy is her tendency to express it in language reminiscent of Barry Goldwater in his intemperate prime. In a 2000 speech to the Federalist Society in Chicago, she said, "We no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate: the drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens." She spoke of the Supreme Court's belated acquiescence to the New Deal as "the Revolution of 1937," resulting today in "a debased, debauched culture." There is much more in this vein, and not just in her speeches. In a 2002 dissent involving a San Francisco housing regulation, she declared that private property "is now entirely extinct in San Francisco," replaced by "a neo-feudal regime."

Democrats charged that Brown's temperament is radical and her views nutty. In her defense, Senate Republicans had a good deal to say. Most interesting, though, is what they did not say. With only few and brief exceptions, they were unwilling to defend her philosophy.

They recounted her life story. (Can you say "sharecropper's daughter" 898 times?) They listed endorsements. They harped on the 76 percent vote she won in a 1998 state retention election. (Absent scandal, that kind of support is standard for judges in unopposed retention elections. Anyway, if a majority of Californians can't be wrong, can we look forward to Republicans' revising their positions on medical marijuana and stem-cell research?)

A frequent refrain was that nominees should not be disqualified for using, as Judiciary Committee Chairman Arlen Specter, R-Pa., put it, "colorful phraseology." Said the chairman, "It is true that she has made undiplomatic statements, but she is not in the State Department." Sen. Mitch McConnell, R-Ky., debuted a theory of judicial confirmation that Democrats may have occasion to quote back to him: "We ought not [to] hold against nominees—particularly those who have written a good bit, published a good bit—their provocative statements."

They and other senators went on to argue that Brown's personal opinions should be distinguished from her judicial philosophy, which is one of restraint. The New Deal, they affirmed, will be safe in her hands. They noted that Brown has frequently written or joined in rulings that uphold government programs and regulations.

This is true. Writing for the majority in a 2000 case, for example, she upheld an assault-weapons ban that she openly detested. The legislature, she said, needed leeway to enact unfair and ineffective laws as long as it did not unduly burden individual or minority rights.

On the other hand, to claim, as Republicans did, that Brown's firebrand rhetoric reflects (a) mainstream opinion that (b) she won't act upon is as disingenuous as it is incoherent. "She has certainly expressed more sympathy for Lochner"—a 1905 Supreme Court decision, subsequently overturned, holding that property rights trumped government regulation—"than is currently respectable in mainstream legal circles," says David Bernstein, a George Mason University law professor who is sympathetic to Brown's views.

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Jonathan Rauch is a contributing editor of The Atlantic and National Journal and a senior fellow at the Brookings Institution.

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