October 26, 2003


Bush judicial nominee slammed (Sacramento Bee, 10/23/2003)

California Supreme Court Justice Janice Rogers Brown, President Bush's controversial nominee for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, ran into a firestorm of criticism from Democrats ...

In her questioning, Feinstein zeroed in 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."

If judging doesn't work out, Ms. Brown, a judge after my own heart, can always write for the BrothersJudd. The pay isn't good, but we don't have to bow down to liberal idols.

Posted by Paul Jaminet at October 26, 2003 5:47 PM

Only a Democrat would call anything "disturbing because of its anti-government tone."

Posted by: Timothy at October 26, 2003 6:31 PM

I wonder if a group portrait of the filibustered nominees would be possible? Individual shots grouped at the top of a page would be nearly as effective. Perhaps over the 4-4 Supreme Court decision striking down "under God" as part of the Pledge? Or maybe over a picture of Daschle leading the filibuster against the "free drugs for geezers act". The top Dem strategists are a real marvel aren't they?

Posted by: RDB at October 26, 2003 7:30 PM

If the GOP doesn't use the Dems filibuster of judge nominees (women, hispanics, african-americans) to gain at least a few senate seats then they truly are the stupid party. RDB is right - an ad showing the blocked nominees showing their qualifications is required.

Posted by: AWW at October 26, 2003 8:29 PM

Far better would be an ad showing the nominees, and then the people who block them: Schumer, Durbin, Leahy, Kennedy, Daschle, Edwards, etc. Such homogeneity just does not become America, eh?

Posted by: jim hamlen at October 26, 2003 9:37 PM

Interesting legal commentary on today's NYT editorial at:


The closing paragraph: "...the idea that a judge who has served with distinction for seven years on the most important state supreme court in the country is barely or not qualified to be a federal appellate judge is just ridiculous."

Posted by: jd watson at October 26, 2003 10:59 PM

In her lame response, she offered that she had spent 99% of her professinal career feeding at the public trough.

As Orrin said about the academic who did studies tha disparaged the prejudices of his funder, she should have the decency to go into private practice.

She is not qualified to be a judge for the same reason Bork was not qualified: we don't need any watergirls on the judicial bench.

Posted by: Harry Eagar at October 26, 2003 11:41 PM

So lemme get this straight-- only people who approve of expansive and intrusive government are qualified to become judges or hold public office? And people with standards are disqualified when they fail in any way to live up to them, but if you never admit to any standards, you are permitted any or all behavior?

There's a word for that--- Canada.

Posted by: Raoul Ortega at October 26, 2003 11:56 PM


By your definition, Warren, Blackmun, and Douglas would be supremely disqualified: they were shills for idealogy and scooped their water on each and every case. Marshall was the same.

And are you calling Thomas a 'heavyweight' because he defies convention? Somehow I doubt it.

Posted by: jim hamlen at October 27, 2003 7:51 AM

For long-term conservative hopes I think she
would be better off as president of a
law school molding young minds..

I actually think if the court get's more liberal
it might just create the populist revolt we have
been needing (mass disregard for Supreme Court
decrees) to bring the balance of powers back into

I personally hope they rule the pledge of allegiance unconstitutional. The problem with
roe v. wade as a focus issue for conservatives
is that it came at a time when the base was
not terribly mobilized and nobody seems willing
to touch this "settled law". I think if a decision of that caliber came today the reaction
would be different.

Posted by: J.H. at October 27, 2003 9:01 AM

I was present at the U of Chicago Federalist Society speech in question. It cheered my heart immensely. It cheered me almost as much as her treatment of a dopey questioner afterward, who asked her how she, a black woman, could say such things while so many in our country are poor, hungry, disadvantaged, etc. Justice Brown briefly described her upbringing (sharecropper's daughter from Alabama) and career (worked her way through UCLA law school, joined state supreme court), and proceeded to tear the young idiot a new one on the subject of this land of freedom and opportunity with liberty guaranteed by law.

I was saddened to learn the next day that the Supreme Court of California, unlike many other courts, has permanent civil servants for clerks and doesn't hire recent law graduates for one or two year terms.

Posted by: Random Lawyer at October 27, 2003 9:45 AM

Harry's take on this must be, I hope, tongue-in-cheek. But the more one thinks about it, is nothing more that the usual big government/liberal litmus test: only those who care about an expansive government can both be sincere AND go into government. The rest of us either must work in the provate sector, or be labelled hypocrites. This is vacuous (or cynical) logic. Janice Brown, Robert Bork, etc. had the courage to fight their battles in the most valuable battlefield, from within, where the need for reform is biggest and the impact the highest.

Posted by: MG at October 27, 2003 10:08 AM


You're describing a strange, strange America where only those whose narrow, personal interests coincide with the interests of the bureacracies they inhabit are to work within those gov't bureaus. Unless, of course, you're pulling some legs? Even the thin stratum of honorable men who designed the federal gov't would find such thinking hilarious.

Posted by: Tom C., Stamford,Ct. at October 27, 2003 12:43 PM

J.H. -

But what type of populist revolt do you want? I wouldn't mind if Souter, Ginsburg, and Stevens were tarred and feathered and chased across the 14th St. Bridge, but I doubt if that will happen.

A constitutional amendment of a conservative bent probably will never be passed, for the same reason that the 28th amendment failed: lack of interest (and a determined, if relatively small opposition). Conservatives don't get excited about amending the constitution.

Corralling the judiciary will really require a joint effort by the other two branches (or the election of 60 Republican Senators and dramatic changes on the Supreme Court). But I doubt if that will happen, either. However, if Bush gets to replace Stevens, O'Connor, Rehnquist, and maybe one other, who knows? Reagan should have nominated Bork in 1986, when he would have been confirmed.

Posted by: jim hamlen at October 27, 2003 2:32 PM


I am talking about massive civil disobedience
until the court stands down from its assault
on our republican system.

I would prefer congress to combat the courts,
but that's is not going to happen.

People will need to go to jail. Up until now
nobody has forced the federal government to
enforce these decrees. In practice many of them
are unenforcable.

Posted by: J.H. at October 27, 2003 3:53 PM

People are attacking Janice Brown for the wrong reasons. For there are some hints that she would read her own agenda into the US Constitution. Unlike liberal justices, here agenda would be right-wing economic instead of left-wing social.

See http://www.reason.com/hod/cb102703.shtml for some of her rulings. In "Santa Monica Beach", she apparently ruled that a rent control ordinance was inherently unconstitutional. In "San Remo Hotel" she ruled that a law restricting hotels from switching rooms reserved for long-term rentals over to short-term rentals was a public taking, exactly as if the state simply seized the hotels. Did the people of California really intend to write such a fundamentalist view of rent rights into their constitution?

In any event, people like me who think constitutions should mean what they say should examine Justice Brown's rulings more carefully before endorsing her bid for Federal Court.

Posted by: Peter Caress at October 27, 2003 8:35 PM

Few judges have taken a stard as far to the left or right as Brown has.

Orrin keeps arguing that a society must be intolerant of those who don't accept enough of it to help it stand up. I don't particularly agree with him, especially since he intends to apply to to thoughts rather than deeds; but let's be fair.

If that's the standard, she has no business anywhere but private practice. How could she honestly take the oath?

Posted by: Harry Eagar at October 28, 2003 1:55 AM


You may be setting a standard that in practice would serve to project only the most rabid of ideologues and ideologies. The fact that the left has always seen their program as impossible to impose democratically, their reliance on the court is absolute. The fuzzy headed elitist liberalism which, of course, thrives in the rareified world of ivory tower academia, serves them particularly well if the courts are to be the battleground.

Justice Brown's clearheaded reliance on the obvious intent of the constitution and it's meaning regarding the protection of life, liberty and property would only counterbalance the overeasoning and intellectual gymnastics that have been employed by the court to find socialism as an intent of the framers.

Posted by: Tom C., Stamford,Ct. at October 28, 2003 9:45 AM