Judicial Race

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In the latest battle for the ideological soul of the federal bench, conservative California jurist Janice Rogers Brown this week came in for some pretty severe scrutiny, as the Senate Judiciary Committee debated her nomination to the U.S. Court of Appeals for the District of Columbia, a gig widely seen as a springboard to the Supreme Court. But this one has a twist: Brown is a black, and so an already nasty tussle is inflected, in ways overt and tacit, by the politics of race.

Democrats tore into her record, calling her a fringe conservative whose judicial rulings owe more to ideology than legal precedent, and whose ideas — which run from a disdain for government to a conviction that the New Deal was a catastrophic gain for the “socialist revolution” — are way out of whack with most Americans.

Brown has defended herself, not entirely convincingly, by arguing that, “speeches… are sometimes an opportunity to think out loud.”

Democrats are also unhappy about Brown’s rulings against affirmative action. A controversial case in 2000, Hi-Voltage Wire Works Inc. v. City of San Jose, upheld ballot initiative 209, which banned preferential treatment for women and minorities in public contract, college admissions and job applications.

Illinois Democratic Sen. Dick Durbin called her a “conservative judicial activist,” and even her home-state Senator, Diane Feinstein, took a shot, calling Brown’s speeches and rulings “extraordinarily intemperate.” Many see her nomination by President Bush to the appellate court as part of his long-range strategy of tilting the Supreme Court further rightward. Eva Paterson, director of the Equal Justice Society, told the San Francisco Chronicle that Brown threatens the foundation of affirmative action.

“It’s particularly painful for us to be opposing an African American’s elevation…I don’t want to oppose another sister. But this is a philosophical war… If she gets through here, she will probably be nominated to the U.S. Supreme Court. If Justice Brown is on the [Supreme] Court, there will be no more affirmative action.”

While the fight over Brown could get even nastier than the one earlier this year over Miguel Estrada’s nomination (which Dems won), Democrats aren’t the only ones on the offensive. Republican legislators and conservative activists aren’t joking around either. At the start of yesterday’s hearing, Senator Orrin Hatch, a Utah Republican and Brown supporter, accused Democrats of attacking her because she is a conservative African-American judge.

“She is a conservative African-American woman, and for some that alone disqualifies her nomination to the D.C. Circuit,” said the committee chairman.

It gets worse. Playing the race card, Hatch opened his remarks to the committee by unveiling an enlarged version of a cartoon published by the Black Commentator, a web publication critical of Brown’s nomination. The cartoon, which portrays Brown another Clarence Thomas with a large “fright wig” on “her” head, shows president Bush confusing her name with that of Justice Thomas. In the hearing yesterday, Hatch unveiled the politically incorrect cartoon, calling it a “vicious” and “filled with bigotry.” Black Commentator‘s Web site viewed Hatch’s display of their cartoon as a small victory, arguing that they had to portray Brown with a “fright wig,” because her politics are so frightening. (Which, admittedly, is a lame comeback; but that doesn’t excuse Hatch’s theatrics.)

While this was going on at the Senate hearing, conservatives were busy cranking out anti-liberal diatribes. The GOP USA Web site cited research “proving” that Senate Democrats will “only consider candidates who support their liberal political agenda.” Conservative media piled on, arguing that while conservatives are agenda-free in their judicial appointments, the Democrats will easily dismiss a qualified candidate who doesn’t meet their liberal litmus test. The Intellectual Conservative explains:

“Liberal activists are trying to defeat the nomination of Judge Janice Brown to the D.C. Circuit Court of Appeals, probably because she doesn’t believe that the Court of Appeals should be used as a platform for liberal judicial activism. An appeals court exists to determine whether or not the law has been followed properly, and not to right all of the wrongs that appear in the cases it examines.”

Thomas Sowell, another popular conservative columnist continues in this vein, critiquing the old-guard of civil rights groups.

“Liberal-left activist groups with pretty names like the People for the American Way, the American Civil Liberties Union, and the National Association for the Advancement of Colored People all understand that much of what they want cannot be enacted into law by legislators who have to face the voters at the next election. It can only be enacted into law from the judicial bench by judges with lifetime jobs, pretending to “interpret” the law when in fact they are creating law.”

The National Review warned that Democrats were poised for attack. And columnist Debra Saunders writes that the Dems just can’t handle the fact that they don’t have a lock on the entire black community. (Which, of course, is partly true,though it doesn’t mean Democrats have to rubber stamp every reactionary judge that comes along.)

“You see, the all-Democratic caucus holds that it alone represents the African American community, that the Democratic Party essentially owns black Americans and that African Americans owe the Democratic Party. Thus, caucus members will hound any black person who escapes the liberal plantation.”

Of course liberals don’t want more conservatives on important benches, but Republicans don’t play the same game? Please. Given that the D.C. appeals court, the second circuit, is an entree to a Supreme Court that’s perhaps one vote away from overturning landmark decisions like Roe v. Wade, the political calculus behind Brown’s nomination is plain. But, even leaving aside the Supreme Court, the D.C. Court of Appeals is a big deal in its own right; it rules on issues affecting the entire nation, from the separation of powers to the role and responsibilities of the federal government, officials and agencies.

With so much controversy, Brown could face a filibuster in the full Senate, a process that held up Miguel Estrada’s nomination for so long that he finally dropped out. The Senate hasn’t announced when it expects to vote on Brown. Expect a bruising battle.


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