When California Supreme Court Justice Janice Rogers Brown faced a retention vote in 1998, 76% of Californians voted to keep her on their state’s highest court. In San Francisco, perhaps America’s most liberal city, 79.4% backed her.
Brown won more votes statewide than any of the other three justices up for retention that year–even though she had cast a (dissenting) vote in favor of upholding the state’s parental-consent law.
But when President Bush nominated Brown to the U.S. Circuit Court of Appeals for the District of Columbia in 2003, her demonstrated support in places like San Francisco did not matter to Senate Democrats.
At the beginning of her confirmation hearing, Sen. Richard Durbin of Illinois condescendingly lectured Brown about her worldview. “Let me talk to you for a minute about the world according to you as you see it,” said Durbin. “It is a world, in my opinion, that is outside the mainstream of America.”
What Durbin really meant is that Brown is the Senate Democrats’ worst nightmare. Born the daughter of African-American sharecroppers in 1949 in Greenville, Ala., Brown rose from a childhood in the segregated South to win a law degree from UCLA, before starting a stellar career of public service in California.
She is an unapologetic champion of limited government who eruditely traces her political philosophy back to the Founding Fathers.
Brilliant, pungently plainspoken, unmistakably dedicated to preserving the Constitution as ratified and manifestly fearless, she is a formidable potential Bush nominee for a U.S. Supreme Court vacancy–who cannot be counted on by Democrats to vote pro-abortion.
She is no David Souter and never will be. That is why Senate Democrats fear and oppose her.
At her confirmation hearing it was Sen. Patrick Leahy (D.-Vt.) who tipped their hand.
“But do you find a right to privacy in the Constitution?” he asked Brown.
“Do I find it in the text of the Constitution, the U.S. Constitution?” Brown replied. “No.”
A few pregnant minutes later, then-Senate Judiciary Chairman Orrin Hatch (R.-Utah) coaxed Brown to expand on this. “Just one question to clarify,” said Hatch. “You said that you did not find the right to privacy in the express language of the Constitution.”
“That is correct,” said Brown.
“Nobody can find it there,” said Hatch.
“Nobody can find it there,” affirmed Brown.
“But,” said Hatch, “do you agree there is a right to privacy that has now been established by the Supreme Court in Griswold and–”
“It is clearly established by the Supreme Court,” said Brown. “That is the law.”
“Do you accept it?” asked Hatch.
“Certainly,” said Brown.
She later made clear she believes appellate judges are bound to follow precedents set by the Supreme Court. But that was not good enough for Senate Democrats. They do not want to allow any judge anywhere near the Supreme Court who will not swear unwavering devotion to abortion-on-demand by judicial fiat. In other words, Janice Brown is facing a new form of discrimination: She is seeking a position for which Democrats will not approve any intellectually honest person.
For almost two years now, she has been the target of a Democratic filibuster. In the last Congress, she won the support of 53 senators, including two Democrats. But because current Senate rules allow a minority of just 41 senators to indefinitely block a final vote on a judicial nominee, her nomination has languished.
Last week, the Senate Judiciary Committee sent her nomination back to the Senate floor on a party-line vote.
Now comes the question: Will the 55-member Republican Senate majority allow Brown to be blocked by 41 Democrats again? Or will it muster the courage to stand up against the predictable bad coverage it will receive from the establishment media and change a Senate rule that a minority is abusing to seize what amounts to a 41-vote veto over the majority’s constitutional authority to provide advise and consent on presidential nominations?
If there ever was a judicial nominee worth fighting for, Brown is it. The time for a showdown is now.
When Janice Brown was a child in the South, Senate Democrats used the filibuster to defend segregation and keep her out of whites-only schools and accommodations. Today, they are using it to keep her off the federal bench. Now, no less than then, they are using the tactic to maintain a morally indefensible policy they fear would be crushed by sustained national attention and debate.
Republicans must not let them get away with it.