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May 9, 2005
Doing The GOP's Work On Brown

It's nice to see that judicial nominees are finally getting a defense from the personal attacks and political smears of the Senate Democrats. Too bad that the GOP isn't the group providing them. After the endorsement by self-described liberal Ginger Rutland of the Sacramento Bee yesterday for Janice Rogers Brown, Nat Hentoff of the Village Voice joined the fight on the pages of the Washington Times today:

The judicial confirmation process has become so savage in recent years that it would take a brave nominee to offer himself or herself for consideration. California Supreme Court Justice Janice Rogers Brown, for example, has been charged in a recent NAACP "Action Alert" with being "hostile to civil rights" and "having extreme right-wing views."

I do not agree with all of Justice Brown's opinions, but I write this to show how prejudicially selective the prosecution of her is by the Democrats, the NAACP, People For the American Way and her other critics. She was filibustered in the last Congress, and may be again, now having been sent to the floor on a 10-to-8 party-line vote by the Judiciary Committee. ...

Another charge by the NAACP in its "Action Alert" is that Justice Brown dissented from "a ruling that an injunction against the use of racially offensive epithets in the workplace did not violate the First Amendment." I know this case, Aguilar v. Avis Rent A Car System Inc., well, having covered it from the beginning andinterviewed lawyers on both sides. Brown dissented from an astonishing decision by the California Supreme Court that authorized the trial judge to actually put together a list of words that would be forbidden for all time in that workplace, even if uttered out of the presence of employees.

This extreme gag rule on speech turned the First Amendment upside-down, because as Stanley Mosk, a much-respected civil libertarian on that California Supreme Court, emphasized: "The offensive content of using any one, or more, of a list of verboten words cannot be determined in advance." As Brown said plainly and correctly: "We are not dealing merely with a regulation of speech, we are dealing with an absolute prohibition, a prior restraint." This could "create the exception that swallowed the First Amendment."

As I have argued for weeks in relation to Brown, her judicial positions clearly demonstrate a more libertarian bent than social conservatism, making her an ideal candidate for the center-right. However, it appears that the Democrats so fear the idea of Bush later naming her to fill a vacancy on the Supreme Court that they feel they must do everything they can now to destroy her reputation. When two liberals have to point out to the Democrats that they have smeared the wrong candidate and do so in the mainstream press, one would think they'd get the message.

One person who didn't was Erwin Chemerinsky, regular contributor to Hugh Hewitt's show representing the Left to John Eastman's Right. Radioblogger has a partial transcript up for the debate between the two lawyers, during which Chemerinsky plays the exact game about which Hentoff warns in his article:

JE: No, I didn't say she would want to overrule that. And Erwin, I challenge you to point to a single opinion that she has written in the ten years that she has been on the bench, where she did not follow binding precedent, and reached out instead to overrule something because it agreed with her personal understanding of the Constitution, rather than the precedent that was binding on her. A single opinion.

EC: Sure. I'll give you an example. Her dissent in the parental notice for abortion, would overrule California precedent with regard to parental notification, and she took a position in her dissent about the California Constitution being limited in what it can do, that was really unprecedented. It would have overruled precedent.

JE: And it directly followed, Erwin, did it not, directly followed Supreme Court precedent on that subject, and by the way, it was a dissenting opinion, not a majority opinion. But it followed what the Supreme Court has said the states are allowed to do, and she upheld the legislative action, consistent with binding Supreme Court precedent on the subject.

On the other hand, perhaps the GOP might start waking up to the fact that they've been complicit in allowing this character assassination to continue as a one-sided game for years now. Arlen Specter, of all people, came close to defending them on the floor of the Senate this evening, according to The Corner:

In the exchange of offers and counter offers between Sen. Frist, the Majority Leader and Sen. Harry Reid, the Democrat Leader, Democrats have made an offer to avoid a vote on the nuclear/constitutional option by confirming one of the four filibustered judges: Priscilla Owen, Janice Rogers Brown, William Pryor and William Myers with the choice to be selected by Republicans.

An offer to confirm any one of the those four nominees is an explicit concession that each is qualified for the court and that they are being held hostage as pawns in a convoluted chess game which has spiraled out of control. If the Democrats really believe each is unqualified, a deal for confirmation for any one of them is repugnant to the basic democratic principle of individual, fair and equitable treatment and violates Senators oaths on the constitutional confirmation process. Such deal making confirms public cynicism about what goes on behind Washingtons closed doors.

Instead, let the Senate consider each of the four without the constraints of party line voting. Let us revert to the tried and tested method of evaluating each nominee individually.

It sounds like the GOP may finally wake up and smell the majority dissipating. It also sounds like Specter has decided to support the Byrd Option, which may convince one or two other GOP leaners to do the same.

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Posted by Ed Morrissey at May 9, 2005 10:37 PM

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