Commentators, activists and other political scorekeepers are
still debating who won last month's "Gang of 14"
nuclear option deal, but to date this much is uncontroversial:
Republicans won the part of the deal that secures an up-or-down
vote on specific nominees including Janice Rogers Brown. Wrong.
Republicans will likely vote with near unanimity Wednesday
to elevate Brown to a lifetime seat on the U.S. Court of Appeals
for the D.C. Circuit. This victory will come at an enormous
cost. Brown is unique among judicial nominees in that she
openly supports judicial activism. Any Senator who votes for
Brown forever surrenders credibility in opposing a nominee
who threatens to legislate from the bench.
This may not seem like a big deal in the world of judicial
nominations politics, where some view consistency as the hobgoblin
of small Senatorial minds, but the stakes for Republicans
are very high. For decades, Republicans have based their arguments
on judicial nominations on a simple and compelling narrative.
The Supreme Court under Chief Justice Earl Warren, the story
goes, was activist and the justices of that era improperly
read their own political views into the words of the Constitution.
Only conservative judges - repelled by the activism of the
Warren court, believing in judicial restraint and committed
to following the text of the Constitution - can be trusted
to respect the proper judicial role.
Previous nominees have raised serious questions about Republicans'
professed commitment to judicial restraint. The writings of
Clarence Thomas, for example, suggested an affinity for importing
"natural law" into the Constitution's text. But
no prior nominee has presented the question as starkly as
Brown. In her judicial opinions and her speeches, Brown has
endorsed some of the wildest musings of the libertarian right,
arguing for an interpretation of the Takings Clause that prohibits
almost any interference with property use and pining for a
return to the long-discredited era of Lochner v. New York,
when the Supreme Court regularly struck down Progressive-era
labor and safety protections. Mainstream conservatives recognize
that these theories have no plausible constitutional foundation.
Brown has also endorsed judicial activism as a tool for advancing
her free-market policy preferences. She has chided conservatives
for their "dread" of judicial activism and noted
that "the problem may not be judicial activism."
The problem instead, according to Brown, is the "world
view" of judges. In other words, activism isn't bad,
according to Brown, as long as it is the right kind of judicial
Brown's views have led to some startling comments by prominent
conservatives. National Review Senior Editor Romesh Ponnuru
has noted Brown's embrace of judicial activism and concluded
that "if a liberal nominee to the courts said similar
things, conservatives would make short work of her."
George Will has sketched out the mainstream of conservative
legal thinking and concluded that Brown is "outside of
that mainstream." Andrew Sullivan has written of Brown:
"Whatever else she is, she does not fit the description
of a judge who simply applies the law. If she isn't a 'judicial
activist,' I don't know who would be." While expressing
support for Brown's "anti-statist" views,"
Sullivan advises Brown to "run for office, not the courts."
The Brown vote is even more critical because of the court
to which she has been nominated. Because of its broad authority
to review federal government regulations, the D.C. Circuit
is a uniquely powerful perch from which Brown could practice
her anti-government form of judicial activism. Is this what
Senators want to endorse?
Another important principle is at stake here. During the debate
over the nuclear option, Republicans insisted that Democrats
should forgo their right to filibuster so judicial nominees
could be voted "up or down" on the Senate floor.
Democrats responded that because Senate Republicans had essentially
ceded their "advice and consent" authority to a
president of their own party, the nuclear option would turn
the Senate into a "rubber stamp" for President Bush's
The Brown vote will determine which side was right, and which
side was wrong. If Republicans vote along party lines to confirm
Brown, a nominee who goes against much of what Republicans
have purported to demand from judges, Democrats will be vindicated
in their assertion that the filibuster is needed to ensure
that the Senate does not become a department of the executive
branch. On the other hand, if Republicans join Democrats in
voting Brown down, it will be a powerful lesson to all America
about how the advice and consent process is supposed to work.
Douglas T. Kendall is founder and executive director of
Community Rights Counsel, a nonprofit law firm based in Washington,
D.C., that works on judicial confirmation issues.
Jennifer Bradley is an attorney and program director at Community
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