Posted on 10/26/2003 12:52:51 PM PST by Congressman Billybob
Janice Brown, a Judge on the California Supreme Court, has just been nominated by President Bush for a seat on the US Circuit Court for the D.C. Circuit. This Court is “first among equals” of the federal Circuit Courts, because most cases and appeals concerning the legality of actions by all federal agencies go to this Court before coming to the Supreme Court. The attacks on Ms. Brown have begun. They are vicious, ignorant and racist, and they are led by the New York Times.
Does that sound like an excessive charge against the opponents of Ms. Brown? Read on.
There is a saying among so-called black activists that drivers of cars are subject to being stopped for the crime of “driving while black.” Ms. Brown, who is a black woman of great accomplishment, is being attacked in essence for “judging while not being black enough,” or as I would put it, of “judging while honest.”
Consider the attack made on her in an editorial by the New York Times. The newspaper claims that she “is among the very worst ... of the many unworthy judicial nominees President Bush has put forward ...” The editors write about her that, “she has declared war on the mainstream legal values that most Americans hold dear. And she has let ideology be her guide in deciding cases.”
Among the items in the bill of particulars the Times lays at the doorstep of Judge Brown is that “she has praised the infamous Lochner line of cases, in which the Supreme Court, from 1905 to 1937, struck down worker health and safety laws as infringing on the rights of business.” Every lawyer alive today has studied that line of cases in law school. Every lawyer knows that the Supreme Court’s decisions striking down various New Deal legislation, until 1937, had nothing whatsoever to do with “infringing on business.”
Almost every law ever passed by Congress since it first met in 1789 has either helped or harmed someone’s business. That’s what laws do. The Lochner cases concerned whether Congress had the authority, under the Constitution, to pass certain laws. That’s the central question that every judge (and Justice of the Supreme Court) is supposed to ask and answer about any law passed by Congress or by any state legislature. The Lochner cases, and all that followed them, were not about help or harm to businesses; they were about the limits of legislative authority.
How could the Times make such an obvious and stupid error in an editorial?
I went to college with some people who wound up working for the Times. Over the years I’ve met several others. Without exception they are very bright men and women. There’s no reason to believe that the rest of the staff of the Times are any less able. I conclude that the editors of the Times are too intelligent and well read to make such an error by accident or mistake. I conclude that they are flat-out lying, in the service of the political bias of that newspaper which has survived the recent and well-deserved removal of its Editor in Chief, Howell Raines.
If so, there must be a motive. The motive is demonstrated first in the title of the editorial, “Out of the Mainstream, Again.” In short, the editors of the Times are, in their own minds, the arbiters of what is “mainstream” in America – in all subjects, which of course includes how acceptable judges should conduct themselves.
The editors offer some clues to their hostility to Judge Brown, by these statements: “The Bush administration has packaged Justice Brown, an African-American born in segregated Alabama, as an American success story. The 39-member Congressional Black Caucus, however, has come out against her confirmation.” The idea that Judge Brown’s extraordinary life history is not “an American success story” because the Congressional Black Caucus opposes her, is absurd on its face. And the only connection between that Caucus and the “mainstream” in America is that they roared by it decades ago, on their way to the far left fringes of both society and politics.
We look to the kind of legal analysis that Judge Brown has engaged in, in her own words.
In the second of his two columns about the attacks on Judge Brown, “A Lynch Mob Gathers,” Dr. Thomas Sowell has this paragraph. Because I agree with his language as well as hers, I quote it in full:
“Justice Brown is just the opposite [of special interest groups]. Social agendas are not her business as a judge and the integrity of the law is. ‘The quixotic desire to do good, be universally fair and make everybody happy is understandable,’ she wrote in one of her opinions, where she dissented from a majority decision that she found ‘a little endearing.’ She added: ‘There is only one problem with this approach. We are a court.’ ”
I have read portions of several of Judge Brown’s opinions that the special interest groups have most attacked. In all of them, she has followed the law and the constitution (of California or the United States depending on the case), wherever those documents led. She has not allowed her race, her personal views, or her political views to interfere with that task.
Among the reprehensible attacks on Judge Brown is that of Senator Chuck Schumer of New York. He claims she is unfit for the federal bench because she has repeatedly voted against “minorities” and “low-income” people. There are two nasty assumptions in the Senator’s attack. One is that a judge who grew up as a low-income minority child should be expected as an adult to rule with those categories whenever they appear in court before her. The other is that such people deserve to win every case in which they appear.
If the Senator’s position were correct we could dispense with judges. We would need no judges to decide cases, just dermatologists and accountants. The first would verify skin color; the second would verify income and assets. And that would decide the legal point at issue.
The New York Times and the other attackers against Judge Brown would oppose the nominations of the likes of James Madison, Edmund Randolph, Thomas Jefferson, James Mason, or Patrick Henry -- five of the lawyers involved in the writing or the ratification of the Constitution, because they are "out of the mainstream." After all, the people who wrote and ratified the Constitution and its amendments believed that its language is the distilled voice of the people, and that it should be obeyed by all judges. Judge Brown agrees with that concept, as her writings amply demonstrate. She is being opposed precisely because she will obey the law – even when the law stands in the way of powerful special interests who neither understand nor respect the Constitution.
Trivia question for alert readers: Of the five lawyers and “Framers” named above, only one signed the Constitution on 17 September, 1787. Two did not attend the Constitutional Convention. Two others were there, but refused to sign in protest of its lack of a Bill of Rights. Can you name which are which?
While we are on the subject of respect for the Constitution, note that the “Advise and Consent” clause requires only a majority of the Senators present and voting to confirm the nomination of any federal judge. Senate Democrats have indicated in advance that they may mount yet another filibuster, this time against Judge Brown. Using the filibuster in this situation is a deliberate violation of the Constitution. It ups the required votes to confirm a judge (or a Justice of the Supreme Court) from a simple majority of 51 (if all Senators are present), to an absolute 60 votes.
Judge Brown deserves to be confirmed to the US Court of Appeals for the D.C. Circuit. She will serve well in that position. But whether she gets the opportunity to serve depends on whether the Republicans “go nuclear,” and use the Senate’s own rules to enforce the simple-majority voting requirement of the Constitution. That’s a subject for another day. Suffice to say, it has been used before – by the venerable (or perhaps worn-out) Senator Robert Byrd of West Virginia to knock out a filibuster in favor of majority rule.
Not just the nomination of Judge Brown is at issue here. Also at issue is respect for the Constitution, and defense of that Constitution by judges who take an oath to do so. We shall see whether President Bush and Senate Majority Leader Bill Frist approach this task with the diligence and commitment it deserves.
- 30 -
About the Author: John Armor is an author and columnist on politics and history. He currently has an Exploratory Committee to run for Congress.
- 30 -
Enjoy.
We shall see whether President Bush and Senate Majority Leader Bill Frist approach this task with the diligence and commitment it deserves.
Based on their past history, the answer is "no".
For that point of order to succeed, only two steps are required. 1. Confirm that the votes are there for the Point of Order to succeed. 2. Have the will to bring it up. This ain't rocket science. There's no magic involved. It is a Texas two-step and then all of the President's judges (and Justices) will be approved.
John / Billybob
If you want on (or off) of my black conservative ping list, please let me know via FREEPmail. (And no, you don't have to be black to be on the list!)
Extra warning: this is a high-volume ping list.
Henry refused to attend. Jefferson was in Europe, so he couldn't have attended assuming he wanted to.
Mason (a distant cousin of mine) and Randolph attended but wound up refusing to sign the end result (Elbridge Gerry of Massachusetts was the other delegate who wound up not signing.)
You couldn't throw a rock in VA at that time without hitting a Mason or a Randolph.
Unreal!
"The New York Times and the other attackers against Judge Brown would oppose the nominations of the likes of James Madison, Edmund Randolph, Thomas Jefferson, James Mason, or Patrick Henry -- five of the lawyers involved in the writing or the ratification of the Constitution, because they are "out of the mainstream."
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.