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If Republicans Look at Her Record, They Will Vote Brown Down

Roll Call
June 7, 2005
Douglas T. Kendall and Jennifer Bradley
Special to Roll Call


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 activism.

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 judicial nominees.

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 Rights Counsel.

Copyright 2005 © Roll Call Inc. All rights reserved.

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