How Appealing Extra

How Appealing Extra

Friday, April 29, 2005

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April 29, 2005

Tempest Over Brown Nomination Shows Times Have Changed

News Analysis

By Peter Blumberg
Daily Journal Staff Writer

SAN FRANCISCO - California Supreme Court Justice Janice Rogers Brown might never have imagined a fellow judge campaigning on the Rush Limbaugh Show to get her a lifetime seat on the federal bench.

Or that her face would appear in an election year television ad in South Carolina and then again, last weekend, in a giant portrait unveiled at a Kentucky church for a national telecast called "Justice Sunday."

Brown almost certainly couldn't have predicted Internet gamblers casting bets at an offshore casino on whether she will eventually become the first black woman to serve on the U.S. Supreme Court.

Or that she would be graphically pilloried as an Aunt Jemima by an Internet cartoonist, jokingly likened to a serial killer by a Democratic U.S. senator and denounced by so many liberal interest groups that her Senate "opposition" file bulges at nearly four pounds.

But, like it or not, this is all part of the process of winning confirmation to the U.S. Court of Appeals for the D.C. Circuit.

Prior to the current congressional showdown over President Bush's judicial nominees, it was unthinkable that judge politics could turn as ugly as they did in 1991 when Anita Hill accused Clarence Thomas of sexual harassment during a Senate confirmation hearing.

But times have changed, and partisan warfare is no longer reserved for controversial nominees to the U.S. Supreme Court. Now, activists on both sides of the spectrum are waging high-stakes campaigns and pressing all kinds of hot buttons, including race and religion, as they debate who is fit for the federal appellate courts.

With at least one vacancy on the Supreme Court expected this summer, some analysts say the positioning on Brown and other conservative nominees portends even nastier battles to come.

"What we're seeing is that every step of the process is becoming extremely politicized," said J. Clark Kelso, a court watcher and professor at University of the Pacific's McGeorge School of Law in Sacramento.

As most everyone knows from endless media coverage, Brown is one of three long-stalled nominees - along with Texas Supreme Court Justice Priscilla Owen and former Alabama Attorney General William Pryor - who are now poised to trigger the political equivalent of a nuclear meltdown in Congress. If Republicans force a vote on any of the three, Democrats are threatening to shut down the Senate.

Even before Bush first nominated Brown in September 2003, activists braced themselves for a bitter battle over her philosophy. No one pretended Brown's confirmation would be a cakewalk like Thomas' was when the first President Bush appointed him to the D.C. Circuit - for what turned out to be Thomas' 18-month tryout for the Supreme Court.

Civil rights groups, in particular, found ample ammunition to attack Brown's state court opinions on topics ranging from affirmative action to racist slurs in the workplace. They dug up her fiery speeches to the Federalist Society and trumpeted her remarks as proof that she's a right-wing ideologue.

Supporters countered that the 55-year-old jurist is the perfect antidote to rampant judicial activism because she isn't afraid to forsake political correctness in her strict reading of laws and constitutional rights. They insisted that Brown's opinions show a willingness to vote against conservative views, particularly in criminal cases.

That is how the debate played out at first, until Brown appeared in Washington for her confirmation hearing.

Then the tone shifted quickly when Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, introduced Brown to his colleagues as "a conservative African-American woman" and added that "for some, that alone disqualifies her."

With TV cameras rolling, Hatch denounced as "vicious bigotry" a cartoon posted on an obscure Internet site called that crudely caricatured Brown as a female Clarence Thomas striding to take her place alongside Bush cabinet aides Condoleezza Rice and Colin Powell.

The name-calling hasn't let up since, with Brown's foes calling the president a cynic for using her to play the race card and her supporters labeling the Democrats hypocrites for acting like race doesn't matter.

Unlike the intense but relatively brief tempest over Thomas, and Supreme Court nominees Robert Bork and Douglas Ginsburg before him, the furor over Brown just keeps going and growing. She is now the poster girl (along with Owen, who was first nominated in 2001) for the longest-running feud over judge-picking in modern history.

And the longer it drags on, the weirder it gets.

Brown's pedigree as the daughter of Alabama sharecroppers who brought herself up by the bootstraps came in handy for a pro-Bush group in South Carolina to air a TV ad during the 2004 presidential election season shaming candidate John Edwards, then a senator from North Carolina, for his opposition to a "black woman" who became an American success story.

Back in California, one black conservative commentator, Thomas Sowell of Stanford University's Hoover Institute, has taken to calling Brown's opponents a "lynch mob" - reminiscent of Thomas' famous complaint that his confirmation hearing amounted to a "a high tech lynching of uppity blacks."

Brown's supporters in California say it's a testament to her courage that she hasn't simply withdrawn her name from consideration, as other embattled nominees have.

"Not everyone can survive this process," said Douglas Kmiec, a friend of Brown who teaches law at Pepperdine University in Malibu. "Janice is one of those people who is of greater strength than that."

To be sure, this isn't the first bump in the judicial path for Brown. Back in 1996, when Gov. Pete Wilson nominated her for her current position, she had to overcome the dubious distinction of being rated "not qualified" by a State Bar vetting committee.

But taking a few lumps along the way hasn't slowed Brown.

In the past two years, she not only has maintained her standing as the most prolific member of the state's high court, but she also managed to study for 12 weeks at the University of Virginia and write a thesis to earn a master's degree in law.

"She is fully engaged in her work, she is a loving spouse to someone who loves her a great deal, and she is involved in the work of her church," Kmiec said.

Kmiec and others who know Brown describe her as humble and reserved, the type of judge who takes pains to distance herself from the public hubbub swirling around her nomination.

"The last thing in the world she would want is to be in the spotlight in this sort of context," Kelso said last week.

But on Sunday, Brown unexpectedly popped up 3,000 miles from home in Darien, Conn., giving a breakfast speech to an annual gathering of Catholic lawyers and judges - and setting in motion perhaps the wildest week yet in her journey to the federal bench.

Her theme, the values "war" between people of faith and secular humanists, was remarkably similar to the televangelist program, "Justice Sunday: Stop the Filibuster Against People of Faith," that was being simultaneously broadcast nationwide from Kentucky. The Kentucky program, which included taped remarks from Senate Majority Leader Bill Frist, R-Tenn., was designed to rally the religious community around Bush's nominees.

"These are perilous times for people of faith," Brown was quoted saying in a press account, "not in the sense that we are going to lose our lives, but in the sense that it will cost you something if you are a person of faith who stands up for what you believe in and say those things aloud."

It didn't take long - less than a day - for Brown's remarks at the Connecticut event to leap from Internet gossip to national news.

Americans United for Separation of Church and State jumped into the fray, asserting that Brown's Sunday sermon proves she's unfit for the federal bench.

"Judges must be fair-minded and impartial," the organization said in a press release. "Brown's comments show she does not have a judicial temperament and is unfit for the federal bench."

That was quickly followed Monday by the nation's most popular talk show host weighing in to defend Brown from her critics on the left in a radio segment titled "How Democrats Attack a Black Woman Judge."

Rush Limbaugh told his 20 million listeners that Brown was right-on, in a speech four years ago to the Federalist Society, when she bitingly described a 1937 U.S. Supreme ruling as the "triumph of our socialist revolution."

"Institutionalizing socialism," Limbaugh said. "It's what the New Deal was, and because she had the audacity to be honest about it, the red flags went up and here come People for the American Way out to destroy her as somebody who essentially, if you read their piece, doesn't even believe in law."

Limbaugh then took a live phone call from one of his listeners, retired California Supreme Court Justice Edward Panelli (1985-94), who voiced his support for Brown and blamed all the controversy on liberals who can't tolerate "a woman of conscience."

"She's been vilified by African-Americans, by virtue of some of the positions she's taken," Panelli said. "But here's a woman who has lived through the type of discrimination that we're trying to avoid, and you would think that you would want someone to represent those kinds of views on our highest court. It's a shame that they've said the things that they have about her."

On Tuesday, Brown's backers managed to highlight race and religion in the ultimate Washington photo op: Four conservative black religious leaders gathered at a podium calling for an "up or down vote" on the nominee. The Associated Press photo of the pastors accompanied Wednesday's New York Times story: "Rove and Frist Reject Democrats' Compromise Over Bush's Judicial Nominees."

To Brown fan Ward Connerly, the conservative black businessman from Sacramento best known for leading anti-affirmative action ballot initiatives, both sides in the judge battle are making too much of Brown's race.

"They need to be honest and keep race the hell out of it," he said. "It's unfortunate that Janice Rogers Brown has gotten caught up in this racial maelstrom. The real questions that need to be answered are: Do we want a judge who is independent? Do we want a judge who has the views she has about the role of government and who interprets the Constitution as she believes it was meant to be interpreted?"

Tuesday, April 12, 2005

© 2005 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

April 12, 2005


Forum Column
By Erwin Chemerinsky

Conservatives are attacking the federal judiciary with unprecedented venom.

In late March, after the federal courts refused to order the feeding tube restored to Terri Schiavo, House Majority Leader Tom DeLay, R-Texas, promised reprisals against the federal judges involved. On Monday, April 4, Sen. John Cornyn, R-Texas, gave an astounding speech in which he linked recent violence directed at a federal judge's family in Illinois and in a Georgia courtroom to public frustration over judicial activism.

Cornyn said that frustration with "political decisions" by judges "builds up and up to the point where some people engage in violence." The tragic violence in Chicago and Atlanta were the acts of disturbed individuals; Cornyn glorifies the murders by falsely turning them into political statements.

At the end of the week, a group that calls itself the Judeo-Christian Council for Constitutional Restoration met in Washington, D.C. It included some of the most prominent conservative leaders in the country, such as Vision America's Rick Scarborough, Coral Ridge Ministry's James Kennedy and the Free Congress Foundation's Paul Weyrich. Members of the group said that it will focus on forcing Congress to begin impeachment proceedings against any judge who does not conform with a biblically based interpretation of the Constitution.

The group also seeks to prevent federal court jurisdiction over matters of church and state, marriage and government acknowledgment of a Christian deity. "What it is time to do is impeach justices," Texas Justice Foundation President Allan Parker extolled a crowd of a hundred or so conservative lobbyists, attorneys and activists. "The standard should be any judge who believes in the 'living Constitution' should be impeached."

Last month, Sen. Richard Shelby and Rep. Robert Aderholt, both Republicans from Alabama, introduced a bill titled the Constitution Restoration Act. The bill would preclude any federal court, including the Supreme Court, from hearing cases involving "expressions of religious faith by elected or appointed officials," and it would make the exercise of jurisdiction over such cases an impeachable offense.

Last year, two bills passed the House of Representatives that would have stripped the federal courts, including the Supreme Court, of the authority to hear constitutional challenges to the federal Defense of Marriage Act or to the words "under God" in the Pledge of Allegiance. By this reasoning, Congress could adopt any unconstitutional law and simply immunize it from judicial review by precluding federal court jurisdiction. The enforcement of the Constitution through judicial review that has existed throughout American history would be gone.

The conservative attack on the courts is truly frightening and should be denounced by elected officials and academics across the political spectrum. Let there be no mistake: What these and other Republican leaders are objecting to is an independent judiciary where courts do not follow the commands of Congress or the president. They are seeking through intimidation, threats of impeachment and jurisdiction-stripping to keep the federal courts from enforcing basic constitutional principles, such as a separation of church and state.

It may seem strange that conservative Republicans are choosing this as the time to attack the federal courts. Sixty percent of active federal court of appeals judges, 94 of 162, are Republican appointees. If all of President Bush's pending nominees are confirmed, 85 percent of federal appellate judges will have been chosen by Republican presidents. Seven of the nine Supreme Court justices were picked by Republican presidents, and any vacancies in the next four years will be filled by President Bush. This would seem a time in which conservatives would be extolling the federal judiciary, not bashing it.

What's going on, then? These conservative leaders, in and out of Congress, seem to have a short-term strategic objective and a longer-term political goal. Their immediate objective is to pressure Republicans in the Senate to eliminate the filibuster for judicial nominations. Without the possibility of a filibuster, President Bush could put more individuals from the far right on the Supreme Court and the lower federal judiciary.

In the next few weeks, it is expected that Republicans in the Senate will attempt what has come to be called the "nuclear option" and seek to eliminate the filibuster for judicial nominations. The Senate allows its rules to be changed by a two-thirds vote of the Senate. Since they do not have enough votes to do this, Republicans want to eliminate the filibuster in a different, illegitimate way.

The nuclear option entails a series of procedural moves on the Senate floor culminating in a ruling by the presiding officer - Vice President Dick Cheney - declaring unconstitutional filibusters of judicial nominations.

While Democrats may appeal the presiding officer's ruling to the full Senate, only 51 votes are needed to uphold the ruling. With 55 senators, Republicans believe they may have the numbers to uphold the ruling and prevent further filibusters of any judicial nominations.

Not surprisingly, the conservatives who are bashing the federal courts, such as Cornyn and the Judeo-Christian Council for Constitutional Restoration, are leaders in calling for the Senate to use this option and end the filibuster for judicial nominations. This, of course, would eliminate any check on the ability of the president to fill the federal courts with very conservative judges.

It also would eliminate a practice that has been followed in the Senate since the earliest days of American history. The first filibuster occurred when the Senate was debating where to locate the nation's capitol. The filibuster is a crucial check in a system based on checks and balances. The filibuster also reflects the unique nature of the Senate with each state, regardless of size, having two senators.

Without the filibuster, 51 senators reflecting a relatively small percentage of the country's population can pass anything. In the current Congress, for example, the 45 Democratic senators represent a majority of the population in the country. The filibuster is a way of making sure that the minority's will does not trump the majority's.

Republicans contend that the filibuster for judicial nominations is illegitimate obstructionism. But this ignores that Republicans, too, have used the filibuster for nominations when they were the minority party. In October 1968, Republican Sen. Strom Thurmond led a successful filibuster preventing the confirmation of Abe Fortas as chief justice and Homer Thornberry as associate justice on the grounds that a lame duck president should not fill Supreme Court vacancies.

At the beginning of the Clinton presidency, Republicans successfully filibustered Henry Foster to prevent his serving as surgeon general.

Also to accuse the Democrats of obstructionism over judicial nominations is laughable. The Senate has confirmed more than 230 of President Bush's picks for the federal judiciary and have filibustered only 10. But those blocked have included some of Bush's most conservative nominees, such as William Prior and Janice Rogers Brown. Conservatives want to go further by giving President Bush the unique legacy of 100 percent success in appointing lower court judges and Supreme Court justices.

Conservatives such as DeLay and Cornyn also have a longer-term political objective: with Republicans controlling all three branches of government, they see an unprecedented opportunity to push their religious agenda. They hope to pressure Republican-appointed judges to toe the party line. Through devices such as jurisdiction-stripping, they want to make sure that Congress can adopt laws advancing religion without having to worry about judicial review.

It is crucial that moderates and progressives in both parties rally against this effort by conservative Republicans. Moderate Republicans in the Senate must join with Democrats in rejecting the nuclear option and keeping the filibuster.

Constitutional scholars of every political stripe must explain that it strikes at the very heart of our constitutional government for Congress to enact laws and preclude judicial review of their constitutionality or for members of Congress to threaten impeachment of judges for rulings they dislike. Political leaders across the ideological spectrum must denounce the venomous attack on the federal judiciary that has occurred in the last few weeks.

Sometimes the first assignment in my constitutional class has been for students to read a copy of the Stalin-era Soviet Constitution and the U.S. Constitution. My students are always surprised to see that the Soviet Constitution has a far more elaborate statement of rights than the American Constitution. I also assign a description of life in the Gulags. I ask how it can be that a country with such detailed statements of rights in its constitution could have such horrible abuses.

The answer, of course, is that in the Soviet Union no court had the power to strike down any government action. An independent judiciary is indispensable to protecting our most precious freedoms. The DeLays and Cornyns who attack the federal courts forget that tomorrow, they may be the ones who need the protection of independent federal judges.

Erwin Chemerinsky is Alston & Bird Professor of Law, Duke University School of Law.