Federal Judges
Now Playing: Those who stand for values will always be attacked !
Topic: Justice
May 17, 2005, 8:12 a.m.

The Dems Post-Nuclear Nightmare

The problem of Janice Rogers Brown.

By Peter Kirsanow

To Democrats, Janice Rogers Brown is the scariest nominee to the D.C. Circuit Court of Appeals in the history of the republic. Since her nomination nearly two years ago, she has been the subject of the most vitriolic and persistent attacks ever leveled against a nominee to the federal bench other than Robert Bork and Clarence Thomas.

The black sharecropper's daughter, born in segregated Alabama, has been excoriated as a closet member of the Ku Klux Klan who, at least according to the Senate minority leader, would like nothing better than to return America to "Civil War days." Left-leaning political cartoonists depict her as an Aunt Jemima on steroids, complete with exaggerated physical features typically found only in the racist literature distributed by hate groups. She's been called insensitive to the rights of minorities, the plight of the poor, and the difficulties of the disabled. Her opponents warn that she is "the far right's dream judge" and that "(s)he embodies Clarence Thomas's ideological extremism and Antonin Scalia's abrasiveness and right-wing activism." And her opponents are plentiful, a who's who of Left-wing advocacy groups: Planned Parenthood, Americans United for the Separation of Church and State, NAACP, NOW, People for the American Way, National Abortion Federation, Feminist Majority, and the American Association of University Women, just to name a few.

SCOTUS on the Mind

What's driving the hysteria? Three things: demographics, abortion (more specifically, the doctrinal approach that produced Roe v. Wade), and impending Supreme Court vacancies.

As Professor Steven Calabresi of Northwestern University Law School has noted, Democrats are determined "not to allow any-more conservative African-Americans, Hispanics, women or Catholics to be groomed for nomination to the High Court with court of appeals appointments." And John Leo observes that abortion politics also is driving the opposition to filibustered nominees like Justice Brown.

As I noted in an earlier piece, pro-life minority nominees represent the perfect storm for Left-leaning opposition groups: non-conformist role models from the Left's most reliable voting blocs who may one day be in a position to reconsider Roe v. Wade. In that regard, Janice Rogers Brown could well be the Storm of the Century: A black female who has been nominated to the court viewed as a springboard to the Supreme Court and who may not view Roe as the zenith of constitutional jurisprudence.

Thomas Sowell adds the kicker: "What really scares the left about Janice Rogers Brown is that she has guts as well as brains. They haven't been able to get her to weaken or to waver. Character assassination is all that the left has left."

Indeed, Justice Brown's intelligence and steadiness are plainly apparent throughout the scores of California-supreme-court opinions she's written over the years. Their lucidity and precision reveal a person unlikely to go searching for penumbras and emanations; someone disciplined in interpreting the nation's laws without resort to European precedent or, as Justice Thomas puts it, "the faddish slogans of the cognoscenti." Put simply, Janice Rogers Brown's copy of the Constitution doesn't have a respiratory system.

Some of Brown's detractors dress up their opposition in legal garb. They contend that she "disregards legal precedent" but fail to cite a single case in which she's overturned existing law. They also allege that she lacks the qualifications to be a judge, ignoring ten stellar years on the California supreme court.

The biggest howler, however, is the claim that Brown "disregards the will of the people as expressed through their legislators." This, despite the fact that she dissented when the California supreme court struck down the will of the people (as expressed through their legislators) requiring parental notification in the case of a minor's abortion. Moreover, Brown wrote the main opinion upholding Prop. 209 — the referendum outlawing racial preferences that was overwhelmingly supported by the people but rabidly opposed by many of the same groups now opposing Brown's nomination. California voters duly punished Brown for disregarding their will by returning her to the supreme court with 76 percent of the vote.

The Substantive Critique
The only charges against Brown meriting serious consideration were posed by Stuart Taylor in a May 2, 2005, National Journal piece in which he examined Brown's nomination and described her as "a passionate advocate of a radical, anti-regulatory vision of judicially enforced property rights far more absolute than can be squared with the Supreme Court precedents with which judges are supposed to comply." (NR's Ramesh Ponnuru has made some similar criticisms.) Taylor's description is largely based upon a review of two speeches given by Brown a few years ago and her dissent in San Remo Hotel v. San Francisco.

Taylor acknowledges that in her confirmation testimony Brown pledged to follow precedent, even when she disagrees with it, but he maintains that Brown has commented favorably on Lochnerism. ("Lochnerism" is a term derived from the 1905 case Lochner v. New York that struck down, on specious 14th Amendment grounds of economic liberty and "freedom of contract," wage and hour and worker-protection laws. Among other things, "Lochnerism" maintains that the state police power shouldn't regulate private commercial transactions. In some ways Lochner is the obverse of Roe). Brown has stated clearly that she doesn't support a return to Lochner.

Taylor cites Brown's San Remo Hotel dissent to suggest that she might invalidate laws that have the effect of redistributing wealth. He argues that such a radically expanded view of judicially protected property rights is simply another form of judicial activism — one that trends toward the libertarian/conservative side of the philosophical spectrum — but activism, nonetheless. To drive the point home, Taylor asks, "How would Republicans react if a Democratic president nominated an advocate of radical redistribution of wealth or Marxism?"

Taylor's critique, the best by far regarding Brown, is thoughtful and substantive, but suffers from at least two infirmities: First, Taylor places too much weight on Brown's speeches. While sentiments expressed in a nominee's speeches may illuminate how that person may behave as a judge, in Brown's case we're not operating with a blank slate. She's compiled an extensive library of opinions while serving on the California supreme court the last ten years. That record reveals a judge committed to steadfast adherence to precedent and textual interpretation. There's nothing in her opinions, including that in San Remo Hotel, outside of the legal mainstream. Critics who charge that Brown might give in to Lochnerian impulses if she were elevated to a United States Supreme Court unchecked by appellate review should consider that her position on the California supreme court provided numerous opportunities to be a judicial activist, yet she took advantage of none of those opportunities. Besides, 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.

Second, Taylor's reading of Brown's San Remo Hotel dissent finds an urge to radically expand property rights where others find an unremarkable interpretation of the California constitution's comparatively broad takings clause.

San Remo Hotel involved San Francisco's hotel-conversion ordinance that requires owners of hotels that serve the poor, elderly, and disabled to pay a substantial fee to the city whenever the owners seek to convert their property to tourist use. The fee, amounting to 80 percent of the construction costs of the units to be converted, would be paid into the city's Residential Hotel Preservation Fund for the poor. Taylor suggests that Brown's dissent from the majority opinion upholding the law indicates she "would invalidate laws redistributing wealth from one group to another." Obviously, such invalidation could affect much New Deal and Great Society legislation, including Social Security and Medicare.

But Brown's dissent is not nearly so expansive. Rather, it's wholly consistent with mainstream (although, admittedly, libertarian-leaning) jurisprudence that holds that broad societal burdens may not encumber the property rights of a discrete or insular class of individuals. Moreover, Brown was referring only to laws pertaining to real property rights, not legislation that may otherwise have the effect of redistributing wealth (Social Security, etc.).

Janice Rogers Brown is no extremist. She's tough, smart, principled, and conservative. She's the embodiment of everything that challenges the worldview of liberal elites. Teamed with a Justice Thomas on the U.S. Supreme Court, she would threaten the Democrat political imperatives cited by Professor Calabresi. Teamed with justices that don't embrace the doctrines of a "living, breathing constitution," she would threaten the political imperatives cited by John Leo.

Two sitting Supreme Court justices are in their 80s; two are in their 70s. Retirement naturally beckons. There could be as many as four high-Court vacancies in the next few years. Nuclear winter fast approaches the Left.

— Peter Kirsanow is a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the position of the Commission.

Stepping It Up on Judges
Now Playing: Aren't we glad God is a Righteous Judge ? Many others sure aren't ...
Topic: Justice
May 02, 2005, 8:09 a.m.

Don Presidente

President Bush must step it up on judges.

“Some day, and that day may never come, I'll call upon you to do a service for me. But until that day — accept this justice as a gift on my daughter's wedding day.” — Vito Corleone to Bonasera the Undertaker in The Godfather.

It is time for George W. Bush to call on those who owe a service to him. When John McCain came to the president and sought “justice” from the political insults of his enemies, Don Presidente granted his request and signed McCain-Feingold into law, despite his serious reservations with its legality. When Arlen Specter sought protection from the slights of his fellow Republicans, Don Presidente stepped into the Republican Senate primary in Pennsylvania and backed Specter over his more conservative challenger, Pat Toomey, drawing the howls of Bush’s most ardent supporters. Many others have called on the kindness of the president for similar political favors, not to be disappointed. Early in his tenure as capo, he even reached out to the other families, appointing two of President Clinton’s holdover nominees to the federal courts of appeals.

And what does he have to show for these acts of kindness? Very little. Languishing in the Senate for the last four years are a group of highly qualified, top-notch nominees to the federal court, supported by a majority of U.S. senators but unable to receive an up-or-down vote. Fueled by ultra-liberal interest groups like Moveon.org and People for the American Way, Democrats have successfully blocked the majority of the Senate from exercising one of its most important constitutional functions, advising on and consenting to the president’s nominees to the federal court. Using the filibuster, a procedural device never before used to block a judicial nominee who would otherwise be confirmed by the Senate, Democrats in the Senate have prevented nearly 1/3 of the president’s nominees to the U.S. Courts of Appeals, the prestigious courts that sit in review of lower-court judgments. Because of obstruction by Democrats, President Bush has been the victim of the lowest confirmation rate for appellate-court judges in modern history.

And the situation may worsen before it improves. On the horizon is the possible retirement of one or even several Supreme Court justices. Democrats, bruised by over a decade of electoral losses in Congress, realize that their only real chance to govern is through the courts. So they will demand the appointment of Supreme Court justices who will continue the trend of judicial activism that has tied the hands of the elected branches of state and federal government on issues like the death penalty, marriage, and decency, and even protection of the homeland. The only problem with their approach is that they do not control the presidency and the commensurate power to appoint those justices. President Bush has sought just the opposite — judges who will not impose their personal political beliefs on society through their judicial decisions. The filibuster, then, is the Democrats’ last remaining hope to achieve their utopia of governance by judges.

Faced with this unprecedented obstruction, Republicans in the Senate have, until very recently, done little to respond. But Senate Republican leadership now appears ready to overcome the Democrats’ obstruction. Recently, Senate Majority Leader Bill Frist proposed a change to Senate rules that would guarantee an up-or-down vote on the president’s blocked judges while at the same time preserving the Senate’s tradition of vigorous debate on each nominee. Frist and his Republican leadership have stepped up the pressure, both in public and privately, on their Republican colleagues to support the rule change — called the “constitutional option” by Republicans in light of its constitutional foundation in the Senate’s ability to establish its own rules of procedure.

Some Senate Republicans are wavering, if not openly opposing, support for the Republican plan. John McCain (R., Ariz.), motivated by fears that Democrats may someday control the presidency and the Senate, recently announced his opposition to the constitutional option. Arlen Specter (R., Pa.) says he hasn’t made up his mind about how he would vote. Others, such as John Warner (R., Va.), Chuck Hagel (R., Neb.), and Susan Collins (R., Maine) remain publicly uncommitted, as Frist and company scramble to lock down the 51 votes needed to ensure the end of judicial filibusters.

Strangely silent in all of this is President Bush. Asked at his recent press conference, he expressed a modest “hope” that his “nominees get an up or down vote.” While the vice president has stated that he would vote to break a tie in the Senate if called upon to do so, the president has declined to weigh in further on Senate Republican efforts to end the filibuster, treating the filibuster issue as an internal Senate matter.

No one has more riding on Senate Republican leadership efforts to end Democrat obstruction than President Bush, and no one has a greater pulpit to make it happen. Confirmation of his judicial nominees is no more a purely internal Senate matter than congressional passage of Social Security reform, a subject on which the president is putting a full court public press. But while as much, if not more, of his legacy rides on the confirmation of his judicial selections, President Bush has been virtually mute. Maybe the president is working behind closed doors to shore up support for the Senate rule change, but it is time he did more publicly to support Senator Frist and Republican leadership. Perhaps a little old-fashioned arm twisting is in order. At a minimum, he should take to the stump to support Senator Frist’s proposal.

Laura Bush joked at this weekend’s White House Correspondents' Dinner that her mother-in-law Barbara was more like Don Corleone than the sweet grandmother everyone thinks she is. How about a little "like mother, like son" action? No one is suggesting that Senators McCain or Specter or those other wavering Republicans wake up with a horse head in their beds, but they might be reminded that the president supported them when they needed him most. President Bush should call on them to render to him this very important service.

— Shannen W. Coffin, a Washington, D.C. attorney, is a former deputy assistant attorney general for the civil division of the U.S. Department of Justice. His wife, Casey, is not at all happy about his comparing the president to a fictional mobster, even in jest.

http://www.nationalreview.com/coffin/coffin200505020809.asp

Higher Authority
Now Playing: Our judicial system vs. Biblical morality
Topic: Justice
The judicial fight against God and the people

Ben Shapiro

March 30, 2005

On Monday, March 28, the Colorado Supreme Court thrust into sharp relief the battle against traditional morality being waged by both state and federal judiciaries across the nation. In a 3-2 decision, the Colorado Supreme Court declared that Robert Harlan, a convicted murderer, had to be given a life sentence instead of the death penalty recommended by the jury because jurors leafed through a Bible for moral guidance during the sentencing phase of the trial. This, the majority stated, violated a jury proscription against viewing outside material:

The judicial system works very hard to emphasize the rarified, solemn and sequestered nature of jury deliberations... Jurors must deliberate in that atmosphere without the aid or distraction of extraneous texts.

This is inane. The judge who presided over the Harlan trial instructed each juror to make an "individual moral assessment" in determining whether Harlan should receive the death penalty; Colorado law dictates that jurors be instructed to consult their own personal morality before making such decisions. Many of the jurors obviously believed personally in Biblical morality. Viewing a Bible is nothing more than consulting a moral compass in which you believe. As the court's dissenters wrote:

The biblical passages the jurors discussed constituted either a part of the juror's moral and religious precepts or their general knowledge, and thus were relevant to their court-sanctioned moral assessment… In so holding, the majority puts death penalty jurors in an impossible bind; jurors are instructed to make the ultimate decision about life or death based on their individual moral assessment -- so long as their individual moral assessments are made from memory.

Is this decision really as arbitrary as all of this, or is there something deeper lurking beneath the surface? When the legalese is stripped away from this decision, all that is left is strident opposition to Biblical morality. The real point of the majority's decision was far simpler than mumbo-jumbo about extraneous texts. The point, as they articulated it, was this:

Some jurors may view biblical texts like the Leviticus passage at issue here as a factual representation of God's will. The text may also be viewed as a legal instruction, issuing from God, requiring a particular and mandatory punishment for murder. Such a 'fact' is not one presented in evidence in this case and such a 'legal instruction' is not the law of the state or part of the court's instructions.

The Bible is a legal and factual text that dictates a code of morality -- a code of morality that the Colorado courts explicitly require the Biblically-minded to consider. It is this superior code of morality , not legality, that the court dislikes. The Court's obfuscation of the issue by equating Biblical injunctions with Colorado statute is silly at best; if the Bible's statutory implications were taken at face value by the jurors, they would have to vote to acquit, seeing as how there were not two eyewitnesses to the Harlan crime (Deuteronomy 17:6).

In reality, this decision signals a cosmic shift in the way the American judicial system works. It used to be that moral judgments were to be made by the people. These judgments were usually articulated via legislation by elected legislatures. In Colorado, moral judgments in criminal cases are explicitly left to the people in the form of the jury.

Now, however, the roles have been reversed. Judges have become the ultimate moral arbiters, while the people are barred from making collective moral decisions. While the Colorado Supreme Court rips jurors for using the Bible as a source for morality, judges have no qualms about looking to "extraneous texts" to impose their morality on the rest of us: Just view the United States Supreme Court's recent decision in Roper v. Simmons, where the majority cited "evolving standards of decency," and then proceeded to justify its own standard of decency by referring to international law. Or how about Lawrence v. Texas, where the majority decided that the Constitution guarantees a right to sodomy based on blasts of hot air from Justice Kennedy: "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime"?

And so the people are prevented from bringing their moral beliefs to bear, while the elites on our benches legislate their morality for the rest of us. These judges don't just want to prevent Americans from bringing their Bibles into jury rooms; they want to prevent Bibles from entering voting booths. In one sense, the Colorado Supreme Court is right -- the Bible is authoritative. But it's certainly a better authority than the subjectivism espoused by our judges.

?2005 Creators Syndicate, Inc.