June 8, 2005

Revisiting the Case for Janice Rogers Brown

The US Senate today approved the appointment of Janice Rogers Brown to the D. C. Circuit Court of Appeals. That news is cause for celebration and revisiting the case for her appointment.

Roger Pilon of the Cato Institute offers these powerful thoughts on Janice Rogers Brown:

How much longer can we go on playing constitutional pretend — pretending that there's a serious connection between the Constitution and so much of what passes today for "constitutional law"?

Rarely faced head-on, the question arises on the few fortunate times when we're presented with a judicial nominee who's been so bold as to publicly doubt the connection. At the moment that's Janice Rogers Brown.

The pretend game is especially well-played by "moderates" wary of "extremists" like Brown. And no one plays it better...than the wonderfully moderate Stuart Taylor Jr., because no one tries harder than he to find common ground between the warring camps brought forth by such a nominee. Blessed are the peacemakers.

But war is sometimes inevitable, as when great principles are at stake...No moderate she, her thinking is indeed "radical," going to the root of the matter. It's the kind of thinking that awakens Washington from its dogmatic slumbers. That's why the battle today is so vicious...because the stakes are so high.

What's the Principle?

Like many a moderate, Taylor sees "grave danger" in the Republican effort to bring an end to the unprecedented judicial filibusters that, for two years, have blocked 10 of President George W. Bush's appellate court nominees. But his criticism is evenhanded, not surprisingly: "Both sides," he writes, "are hypocritical to pretend they're driven by principle, not partisanship."

True, on both sides there's enough hypocrisy to go around, and both sides are driven by partisanship — no surprise there. But that doesn't mean that principle is not also at issue. The question is, What's the principle?

For Republicans, it seems to be "that the Senate's Article I power to 'determine the rules of its proceedings' applies . . . less to confirmation proceedings than to legislative proceedings," Taylor tells us, calling the argument "embarrassingly weak." No, it rests on the history of the extraconstitutional filibuster, which until 2003 had never been used to block judicial nominees with clear majority support. By specifying the few things requiring a supermajority vote, the Constitution fairly implies majority rule for the rest, with "rules of its proceedings" meant mainly for housekeeping. Put it this way: Would constitutional alarms sound were the confirmation rule four-fifths or nine-tenths? Then why not when it's three-fifths?

For Democrats, the principle seems to be to temper majority rule when a nominee is "outside the mainstream" — that is, to filibuster nominees who fail to reflect "the core values held by most of our country's citizens," as Sen. Charles Schumer (D-N.Y.) put it in a 2001 New York Times op-ed, just as he was launching Senate hearings to push for ideological litmus tests for nominees.

Never mind that judges are supposed to apply the law whether or not it's consistent with their own or the citizenry's "core values" (now that is a principle), Schumer's point is captured by Taylor when he concludes his filibuster commentary by invoking the sword of Damocles. The value of the judicial filibuster, Taylor writes, "is not that it should be used, but that it should hang over the process, and serve as a moderating influence on the president."

"Moderating" influence? Moderating toward what? What sense, if any, do terms like "moderate" and "extreme" make in this context? We hear them all the time, yet they serve mostly to end or to cloud — rather than to aid — debate about what a judge should do or what we, and the Constitution, stand for — about matters of principle. In the end, to say that a judge is "outside the mainstream" is simply to make a political appeal, to trade on the pejorative "extremist."

Unwilling to Pretend

We come, then, to that issue of principle, and to Taylor's brief against Janice Rogers Brown, currently a justice on the California Supreme Court. Her chief sin, it seems, is that she stands for something, for principle, not unlike — albeit far from in substance — "the remaining exponents of radical redistributionist and Marxist theories" that Taylor plants opposite her. What is worse, perhaps, is that she is willing to speak truth to constitutional hypocrisy — and plainly, at that. She is unwilling, that is, to play constitutional pretend.

Consider, for example, Taylor's charge that Brown is "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." Quite so, save for the anti-regulatory part (she's actually anti-takings, which is not the same as anti-regulation). But is the problem with her vision or with the Court's precedents — with the "labyrinthine and compartmentalized" case law in this area, as Brown has put it?...

What would Taylor have? Less passion from Brown? A less "radical" approach — one that avoids going to the root of the matter? The virtue of someone like Brown is that she's willing and able to go to first principles to straighten out the mess the Court has here, as in so many other areas of our law. In a word, she has a vision. It's a vision of the Constitution, and of the yawning gap between it and much of our modern constitutional law.

A Vision Lost

Therein lies the problem, of course, because the "mainstream" has largely lost sight of that vision. Indeed, Taylor himself recognizes that when he frames his critique with a question that speaks volumes about modern constitutional confusions. Drawing on charges that Brown, were she on the Supreme Court, would be active in holding Congress to its enumerated powers, he asks: Where is the conservative outrage over the president's having nominated someone who believes the Court has authority to find so many of the administration's programs to be without constitutional authority?

Conservatives like Robert Bork and Scalia, after all, have made careers railing against "judicial activists." Yet here comes Brown, who believes the Court should "actively" hold the federal government to its enumerated powers while securing our rights, both enumerated and unenumerated, against every government — federal, state, and local.

Modern liberals recoil against the first of those — "the Supreme Court's recent 5-4 decisions that constrain Congressional power," as Schumer put it in that New York Times piece. Yet what else could James Madison have meant except limited government when he wrote in Federalist 45 that the powers of Congress would be "few and defined"? Modern conservatives recoil against judicial enforcement of unenumerated rights, fearing "judicial activism." Yet what is the Ninth Amendment about if not unenumerated rights? Or the 14th Amendment's privileges or immunities clause? Or the very structure of the Constitution itself? If we're going to be originalists, let's do it right.

To answer Taylor's question, then, it would seem that there are enough thoughtful people in the Bush administration to have appreciated the constitutional dilemma before the nation — the crisis of legitimacy — and the need to bring it out in the open. In a word, we have a Constitution authorizing limited government, yet Leviathan surrounds us — and Justice Brown is perceptive and secure enough to say so, as Taylor amply notes. For that she should be commended, not criticized...

To be sure, that was one year before the constitutional revolution that is primarily responsible for the constitutional dilemma we have today. Following fast upon President Franklin Roosevelt's notorious Court-packing scheme, the Court caved to political pressure in 1937 and opened the floodgates for the modern welfare state. That's when politics trumped law on a grand scale, and it's never been the same since.

Boston University's Gary Lawson put the upshot well in the 1994 Harvard Law Review: "The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution." But take it from someone who was there, Rexford Tugwell, one of the principal architects of the New Deal: "To the extent that these [New Deal policies] developed, they were tortured interpretations of a document intended to prevent them."

The New Dealers knew exactly what they were doing to the Constitution. Janice Rogers Brown understands that, too. We're fortunate to have so radical a nominee before us.

What kind of person is Janice Rogers Brown? This Power Line posting contains these powerful words by Brown, providing an insight into her own character:

In her March 6 eulogy of the late Presiding Justice Robert K. Puglia of the California Third Appellate District Court of Appeal, Justice Brown said:
Justice Puglia deserves a place in the pantheon of great American judges. He completely understood the role and relished it. He exhibited the classical judicial virtues: impartiality, prudence, practical wisdom, persuasiveness, and candor. He demonstrated complete mastery of his craft. He had a keen awareness of the ebb and flow of history, and of the need for consistent jurisprudence, and, above all, self-restraint. It may sound odd to describe a judge as both passionate and restrained, but it is precisely this apparent paradox — passionate devotion to the rule of law and humility in the judicial role — that allows freedom to prevail in a democratic republic.

Justice Brown added:

He taught us that character counts and integrity is personal. He never allowed cruelty or deception or hypocrisy to go unchallenged. He did the right thing even when he would have benefited from doing the expedient thing. Freedom is not free he would often remind us, but, in Justice Puglia's view, it was worth the price--however dear.

His life experience and his understanding of history produced in him a certain toughness -- the power of facing the difficult and unpleasant without flinching; discipline and intellectual rigor; physical courage; and, even more importantly, the courage to be different. Never one to follow the herd of independent minds, his was a unique voice...

Carl Sandburg described Lincoln as "both steel and velvet...hard as rock and soft as the drifting fog. Reading these words caused a shock of recognition, for I had been seeing exactly this sort of paradox and contradiction in the life of Justice Puglia.

Seeing these parallels, I have come to understand that this flexibility is neither paradox nor accommodation. It is just the opposite--a sense of sure-footedness and balance that is often the defining trait of people of great character and impeccable integrity. It is precisely this quality which makes the honest public intellectual, a man like Bob Puglia, so extraordinary.

In his first message to Congress in 1862, Lincoln warned that we might "nobly save, or meanly lose, the last best hope of earth." Lincoln, of course, was referring to the Union. Justice Puglia felt that same sense of fierce commitment to the rule of law. The preservation of the rule of law and of the equality of all people under that rule was, in his view, the core principle of liberty and the only reason America might qualify for such a grand epithet.

As tears flowed among the 1,500 mourners in attendance, Justice Brown concluded:

My favorite movie scene is in "To Kill a Mockingbird." It is the scene where Atticus Finch has argued brilliantly and raised much more than a reasonable doubt, virtually proving the innocence of the accused, but the jury still returns a guilty verdict. Most of the spectators file noisily into the street, gossiping and celebrating. Upstairs, relegated to the balcony, another audience has watched the proceedings and remains seated. As Atticus Finch gathers his papers and walks slowly from the courtroom, they rise silently in unison. The Black minister, Reverend Sykes, taps Scout on the shoulder and says: "Miss Jean Louise, stand up. Your father's passin'." To me, this silent homage to a good and courageous man, who respects and believes in the rule of law--and is willing to defend it even at great personal cost--is the most moving moment in the whole film.

Justice Puglia was just such a man. And he was not a fictional character. Most of us have risen to our feet many times to mark his passage because he was a judge. Court protocol required us to show respect for the robe and what it represented. But Justice Puglia was the kind of man who earned and could command our respect by virtue of his life and character. In a way, the robe was superfluous.

We have had the great good fortune to know this extraordinary man. We can remember what he taught us. We need not be fearless to have courage. We can be tough and tender. We can do the right thing--and face the bad that cannot be avoided unflinchingly. We can laugh. And we must sing--even when people frown at us and advise us to keep our day jobs. We can care for the people around us. We can be generous. We can make our way, against the tide, without rancor or bitterness. And when we are tired and overburdened and feel we are not brave enough to go on, we will hear his voice in our ear. Hear him say in that quiet and steely tone: "Yes, you can. You can." And we will know that we are being true to his legacy. The legacy of one who loved liberty. We will know that we are standing up...because Justice Puglia is passin'.

Such thoughtful elegance, which caused Power Line to state: "Paying tribute to her beloved mentor, Justice Brown herself reflects the intellect, heart, experience, and eloquence she observed in him."

Against this display of her deep thought, how do her opponents attack her?

Wendy Long writes:

Senators Harry Reid, Pat Leahy, and Ken Salazar have in the last hour been lying on the Senate floor about Justice Janice Rogers Brown.

Example: Senator Reid just repeated the left-wing lie that Justice Brown longs for a reassertion of the long-overruled Lochner v. New York decision. Lochner held that the "liberty" protected by the 14th Amendment prevented states from enacting labor laws to protect workers. In fact, Justice Brown criticized a FOOTNOTE in Justice Holmes's dissent in Lochner in which Holmes asserted the Founders of our country did not embrace any particular economic theory. Justice Brown pointed out that the Founders and the Constitution embraced a Lockean view that private property must be protected. As the daughter of a sharecropper, that truth is particularly poignant.

With respect to Lochner itself, Justice Brown was asked in her Judiciary Committee confirmation hearing whether she agreed with the holding. She said, "No."

Mychal Massie writes:

...Schumer announced he was worried about the "hard, hard right" of the Republican Party, people whose goal is to "turn the clock back to the 1930s or the 1890s."

Schumer's comments are telling because today - exactly as in the 1890s - liberal anti-black Democrats still publicly humiliate upstanding black citizens. Just ask judicial nominee Janice Rogers-Brown. But I digress.

Worrisome to Schumer is the fact that in the 1890s blacks were Republicans. And Schumer can under no circumstances abide that happening today. Note the following:

The inhuman outrages perpetrated upon African Americans in the South were largely committed through the Democrats' Klu Klux Klan. It is indisputable historical fact that the Klu Klux Klan was started by the Democrats.

In fact, during congressional hearings on the subject, one prominent Democrat testified that the Klu Klux Klan "belongs to ... our party - the Democrat Party."

And the first grand wizard of the Klu Klux Klan was prominent Democrat Nathan Bedford Forest ... According to African American U.S. Representative John Roy Lynch, "More colored than white men are thus persecuted simply because they constitute in larger numbers the opposition to the Democratic Party."

U.S. Representative Richard Cain of South Carolina, a bishop in the AME denomination, agreed, declaring: "The bad blood of the South comes because the Negroes are Republicans. If they would only cease to be Republicans and vote the straight-out Democratic ticket there would be no trouble. Then the bad blood would sink entirely out of sight." ["Democrats and Republicans: In Their Own Words," 1896 Republican platform, page 14]

Ever wonder why Schumer and his fellow Democrats never once speak ill of Jesse Jackson, Julian Bond or Al Sharpton, but eviscerate nominee Janice Rogers-Brown and Justice Clarence Thomas? Schumer's fears are based upon the realization that the more blacks and women who ascend to positions of power as Republicans, the sooner the return to that period of time when these voted overwhelmingly Republican.

In 1896, the Republican platform stated:

We proclaim our unqualified condemnation of the uncivilized and preposterous practice well known as lynching, and the killing of human beings suspected or charged with crime without process of law. ["Democrats and Republicans: In Their Own Words," page 15]
It is of note that the Democrat platform contained no such language.

Even stronger affirmation of racial equality and the civil rights of blacks were specifically acknowledged in the Republican platforms of 1932 and 1936. Consistent to their origins, the Democrat platforms of the same years contained no mention racial equality or civil rights.

Schumer's fears of returning to the 1930s are simple to explain:

In the 1932 election Republican President Herbert Hoover received more than three-fourths of the black vote over his Democratic challenger Franklin D. Roosevelt. ["Democrats and Republicans: In Their Own Words," page 19]

Schumer's motivations are transparent. Democrat obstruction in the Senate is because they are only interested in an America they control - and their only hope for such control is through the votes of blacks. This is why Ted Kennedy, D-Mass., called nominee Janice Rogers-Brown a Neanderthal. This is why liberal Democrats laughed and encouraged the vicious ad hominem attacks on Secretary of State Condoleezza Rice.

Their racism is transparent. They were against the late uber liberal Thurgood Marshall's appointment to the high court. They filibustered the 1964 Civil Rights Act. They opposed the appointment of Clarence Thomas to the high court. They opposed Dr. Rice, Rod Paige, Miguel Estrada, Janice Rogers-Brown and Alberto Gonzales, and, less we forget, Democrats killed every single anti-lynching bill introduced in Congress.

To be certain Schumer is able to offer up flaccid excuses for their actions, especially when it comes to opposing both liberal and conservative high court nominees who happen to be black. I can appreciate Chuckie's fear of the past, but in the present in which we reside - besides racism and abortion - just what do these people stand for?

An excellent Liberty Files posting, led to the discovery of the previous article. The posting offers a blunt assessment of 'just what do these people stand for:' "Aside of abusing the power of the judiciary in order to foist an unpopular atheist-socialist agenda on Americans, nothing else really comes to mind."

Janice Rogers Brown stands for rediscovering the first principles of Constitutional jurisprudence. Our nation is fortunate to have her on the D. C. Circuit Court of Appeals.


This posting adds to these other postings about the judicial filibuster debate on this site, including:

The Filibuster...Continued

The Injustice of Smearing A Fellow American For Political Gain

The Senate Judicial Filibuster: Power Politics & Religious Bigotry

Mac Owen's open letter to Senator Chaffee

Senator Mitch McConnell on the Judicial Filibuster

The Foolish Fourteen: An editorial by the former Dean of BU's Law School

A Power Line overview of the filibuster debate