We
happen to believe that judicial nominees shouldnt have to
give up their free speech rights.
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Wanted:
A Mute to Serve on the D.C. Circuit
Looking
for a new job? Perhaps you should watch the classified advertisements
for an employment opportunity to serve as judge on one of our Nations
most influential courts, the U.S. Court of Appeals for the D.C.
Circuit. After all, the classifieds appear to be the only place
left where President Bush can search for a nominee who meets the
criteria of those Senators filibustering multiple judicial nominations.
Candidates who have any personal opinions espoused in a speech or
included in an article simply need not apply.
Miguel
Estrada, the Presidents former nominee for the D.C. Circuit
seat, withdrew after his Senate confirmation was blocked again and
again and again, making it impossible to move his confirmation to
a final up-or-down Senate vote, which all agree he would have won.
Now one of the Presidents current nominees, California Supreme
Court Justice Janice Rogers Brown, the first female African American
appointed to that bench, is caught in the same political hailstorm.
Labeled
by the Left as an outspoken and controversial conservative, Browns
nomination has also been targeted for filibustering . At the center
of the bulls-eye are comments Brown made in speeches about her views
on the law to organizations disdained by liberals. This guilt by
association has led dozens of organizations, ranging from the National
Association for the Advancement of Colored People to the People
for the American Way, to line up against her.
Many
of these organizations are the same ones that, in 1987, closely
scrutinized President Reagans Supreme Court candidate, Judge
Robert Bork, for his conservative viewpoints. It now seems that
if the candidate happens to be both a conservative and a minority,
the scrutiny only intensifies. Much like the treatment Justice Thomas
received at the hand of special interest groups during his confirmation
hearings, far more emphasis is being placed on Browns comments
made in speeches and writings than on her judicial track record,
thus ignoring the hundreds of court rulings she authored or joined
while serving for the past seven years as an Associate Justice of
the California Supreme Court.
The
Atlanta Journal and Constitution writes that "Brown's views,
as espoused in speeches to ultraconservative groups, are far out
of the mainstream of accepted legal principles." (October 29,
2003). Can someone please find for us where, exactly, the proverbial
line in the sand is drawn when it comes to mainstream America? Most
likely, as with anything political, where the line is drawn depends
greatly upon the leanings of the individual or group holding the
stick. Such a point was not lost on California Third District Court
of Appeals Judge Arthur Scotland who defended Brown this week,
saying "Lets be honest. Janice Rogers Brown is being
opposed by some not on the basis of her qualifications, but because
they perceive the strength of her intellect and the quality of her
character as a threat to the implementation of their political views."
Here,
the stick is held by liberals who seem unmoved by the fact that
Browns record as a judge, when fairly evaluated, demonstrates
that her published opinions fall on both sides of the political
fence. Whatever happened to actions speaking louder than words?
While
under intense questioning this week from Democrats during her four-hour
confirmation hearing before the Senate Judiciary Committee, Brown
defended herself, saying, "I absolutely understand the difference
in roles in being a speaker and being a judge," and added,
"I have only one agenda when I approach a case, and that is to try
to get it right."
Getting
it right is exactly what she does when it comes to upholding the
Constitution. Brown views the Constitution as colorblind, authoring
the majority opinion enforcing Californias Proposition 209,
which was overwhelming passed by the citizens of that state, to
strike down a city program that offered preferential treatment to
businesses owned by minorities or women.
Further,
Browns dissent in the Nike case is evidence of how
she relies on jurisprudence to find an existing legal framework
within which to rule. In Nike, Brown urges the U.S. Supreme
Court to consider the boundaries of the commercial speech doctrine
and afford full protection under the First Amendment to speech,
such as Nikes, where it "is more like noncommercial speech
than commercial speech because its commercial elements are inextricably
intertwined with its noncommercial elements." She should be
applauded for resisting the temptation to legislate from the bench.
We
happen to believe that judicial nominees shouldnt have to
give up their free speech rights. In fact, we believe that jurists
often bring a special perspective to public debate, and thats
just fine so long as the law, rather than the person, is the deciding
force from bench. The record of Janice Rogers Brown shows she knows
the difference between a podium and the bench.
If
Senators arent happy with her qualifications to serve, they
can and should vote against her nomination. But at the very least,
as is the case with every nominee, all 100 senators should be afforded
their right under "advice and consent" to cast their vote.
Unfortunately,
that doesnt look like its going to happen as a minority
of Senators is once again playing partisan politics with the administration
of justice.
[Posted
October 30, 2003]
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