Judicial Activism and Bias; Why Democrats Fear a Vote on Judges

Article excerpt


It is unusual for 14 law professors - Democrats, Republicans, Independents - to write the Senate Judiciary Committee in support of a presidential nominee to the District of Columbia Circuit of Appeals who is attacked by the committee's Democrats as far too conservative. The target is Janice Rogers Brown, a daughter of Southern sharecroppers, who became a Justice of the California Supreme Court. Confirmed by a party-line 10-9 vote in the committee, she faces a Democratic filibuster on the floor of the Senate. Why not let the entire Senate decide?

Years ago, the singularly inventive Miles Davis, bellicosely reactive to any hint of Jim Crow, was criticized by other black jazz musicians for hiring a white pianist, Bill Evans. "I don't care if he's purple with green dots, so long as he can play," Mr. Davis told me. So, too, Justice Brown's race is not relevant to her nomination.

I have read many of Justice Brown's opinions, and I judge her solely as a judge. I have strongly disagreed with some of her opinions, strongly agreed with others. But in supporting her nomination, the 14 law professors, who represent the political spectrum, wrote to the Senate Judiciary Committee:

"Justice Brown's clarity of thought has often captured the mainstream of California's jurisprudence. Perhaps nothing is more revealing of her mainstream views than the fact that in 2002, Justice Brown was relied upon by her colleagues to write the majority opinion more often than any other member of the Court." (Many conservatives regard the 9th Circuit, which includes Brown's court, as far too liberal.)

In a future column, I'll discuss Justice Brown's opinions, which illuminate her independence, and, as the law professors have said, her "thorough appraisal of legal argumentation." But I will first show the mindless partisanship that so blinded Democrats on the Senate Judiciary Committee and their allies (including editorial writers at The New York Times) on part of Justice Brown's actual judicial record.

In a lead Oct. 25 editorial, "Out of the Mainstream Again," The New York Times cited as one of her "extreme positions" Justice Brown's dissent in a case where "her court ordered a rental car company to stop its supervisor from calling Hispanic employees by racial epithets." Also attacking Justice Brown for her dissent in that case, Aguilar vs. Avis Rent A Car Systems, were Sen. Edward Kennedy and the Congressional Black Caucus Lawyers Committee for Civil Rights. Have they read the full record of the case?

The California Supreme Court's majority opinion in that case was one of the most destructive to the core of the First Amendment in American judicial history. Among the other justices joining Justice Brown in that dissent was the legendary civil libertarian, the conscience of the 9th Circuit for many years, Justice Stanley Mosk.

What the majority did was to enjoin the Avis supervisor who used racial epithets "from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis. …