“Of the many unworthy judicial nominees President Bush has put forward, Janice Rogers Brown is among the very worst.”

That’s how the New York Times began its editorial Saturday in a campaign Republicans, libertarians, conservatives and Christians see as increasingly familiar.

They say they’ve seen this script before – first with Supreme Court nominee Robert Bork, again with the Clarence Thomas nomination and more recently with federal bench nominee Miguel Estrada.

But proponents of the nomination to the U.S. Circuit Court of Appeals think Senate Democrats may have overplayed their hand this time.



Janice Rogers Brown

While the New York Times calls Brown “an archconservative” who “has declared war on the mainstream legal values that most Americans hold dear,” they point out she is a California Supreme Court justice – one affirmed by voters in that liberal state with 76 percent approval at the polls as recently as 1998.

Syndicated columnist Thomas Sowell writes: “The nomination of Justice Janice Rogers Brown of the California Supreme Court to become a federal Court of Appeals judge has brought out vicious special interest groups with their long knives – and a long record of smears and character-assassination, going back to the campaign of wholesale misrepresentations that defeated the nomination of Judge Robert Bork in 1987. Leading the charge against Justice Brown, as it did against Judge Bork 16 years ago, is the grossly misnamed organization ‘People for the American Way.'”

Sowell and others say the real agenda of the Senate Democrats, led By Sens. Dianne Feinstein of California, Dick Durbin of Illinois and Edward Kennedy of Massachusetts and People for the American Way is to use the courts to legislate their own left-wing social agenda, which includes racial quotas and unrestricted abortion on demand.

“Judges who believe that their job is to uphold the Constitution, instead of replacing it with left-wing social engineering, are anathema to ‘People for the American Way,'” writes Sowell. “That they are spearheading the character assassination of Justice Janice Rogers Brown is completely predictable.”

Brown is a 54-year-old black woman, the daughter of a sharecropper from Alabama. She showed tenacity in dealing with hostile questioning by Democrats on the Senate Judiciary Committee last week. Indeed she has been an outspoken opponent of racial preferences and a strong critic of government power grabs. In her tenure on the California Supreme Court, she wrote the principal opinion enforcing Proposition 209, the referendum prohibiting affirmative action programs. Although her colleagues agreed with her, some refused to join her opinion in the 2000 case, saying she had gone too far and had used needlessly scathing language in an effort to extend the proposition’s reach.

But her proponents wonder just how far out on a limb the Bush administration is willing to go to support her. In September, Estrada asked Bush to withdraw his nomination to the same appeals court because of solid Democratic opposition that made it impossible for Republican leaders to move his confirmation to a Senate vote.

Democrats are threatening to filibuster the Brown nomination if it comes to the Senate floor.

In the hearing last Wednesday, Senate Democrats attempted to portray Brown as an extremist enemy of government.

“Given your hostility to the federal government and its role in our lives, your nomination to the D.C. Circuit is ironic,” Durbin said. “I am skeptical about this nomination.”

In her questioning, Feinstein focused on a speech Brown delivered three years ago to the Federalist Society at the University of Chicago Law School that the senator said was disturbing because of its anti-government tone.

In that speech, Brown said that “where government moves in, community retreats, civil society disintegrates, and our ability to control our destiny atrophies. The result is: families under siege, war in the streets, unapologetic expropriation of property, the precipitous decline of the rule of law, the rapid rise of corruption, the loss of civility and the triumph of deceit.”

“Do you really believe that?” Feinstein asked.

“I was referring there to the unintended consequences of government,” Brown said.

But Feinstein, who met privately with Brown on Tuesday, called her words “extraordinary for an appellate court justice.”

“How can I depend on you to disassociate yourself from those views and follow the law?” Feinstein said.

When Kennedy attacked her for her anti-government tone in the speeches, Brown uttered her strongest defense.

“I don’t hate the government,” she said. “I am part of the government. I’ve been a government servant 99 percent of my career. I know there are things that can’t get done unless government does them.”

The committee did not say when it would vote on Brown’s nomination, but she is likely to advance past the GOP-controlled committee to the Senate floor. Democrats already are filibustering three of Bush’s conservative nominations there.

“Be clear why the Congressional Black Caucus and other so-called civil-rights groups oppose California Supreme Court Justice Janice Rogers Brown’s appointment to the U.S. Court of Appeals for the District of Columbia,” wrote columnist Debra Saunders in the San Francisco Chronicle. “It is not because Brown wrote a decision that upheld Proposition 209, the voter-approved initiative that ended racial and gender preferences in California state hiring, contracting and admissions. It’s not because she was on the losing side of a 4-3 California Supreme Court ruling that overturned a law requiring parental consent for a minor’s abortion. What really gets under caucus members’ thin skins is that Janice Rogers Brown is a black conservative.

Saunders says the all-Democratic caucus “holds that it alone represents the African American community; and that the Democratic Party essentially owns black Americans; and that African Americans owe the Democratic Party. Thus, caucus members will hound any black person who escapes the liberal plantation.”

“She is a conservative African-American woman, and for some, that alone disqualifies her nomination to the D.C. Circuit,” said Sen. Orrin G. Hatch, Utah Republican and the Senate Judiciary Committee’s chairman.

The attacks on Brown have been harsh and ugly. Blown up and displayed during the hearing last week was a cartoon from the Black Commentator, an online newsletter aimed at black audiences.



Bush introduces Janice Rogers Brown in cartoon (BlackCommentator.com)

The cartoon accompanied a statement by People for the American Way. It depicts Brown with an enormous Afro hairdo and wearing the apron of a house servant. It likens her to Clarence Thomas and also features Secretary of State Colin L. Powell and National Security Adviser Condoleezza Rice.

Brown said she didn’t know of the cartoon until just before the hearing when an aide called in tears, prompting her to address it.

“I have dealt with hatred and bigotry in my life,” she said. “I can’t tell you how distressing I find it to see this cartoon, which is intended to be so demeaning to a group of black people, and to know it was circulated by other black people.”

However, she said she was honored to be featured in a cartoon with luminaries such as Powell and Rice.

“So,” she said with finality, “I am going to look at this as an unwitting compliment and not focus on the vicious motivation for it.”


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