Jewish World Review Oct. 22, 2003 / 26 Tishrei, 5764

Thomas Sowell

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A lynch mob gathers, Part II | "The preservation of a viable constitutional government is not a task for wimps." So said California's state Supreme Court Justice Janice Rogers Brown. If there is any doubt about that, those doubts are sure to be erased during Justice Brown's confirmation hearings to become a member of the federal Court of Appeals in Washington.

The lynch mob atmosphere that has prevailed during confirmation hearings for judges who believe in upholding the Constitution is already in evidence among the special interest groups who are more concerned with their own political agendas than with anything as abstract as the rule of law.

Justice Brown is just the opposite. Social agendas are not her business as a judge and the integrity of the law is. "The quixotic desire to do good, be universally fair and make everybody happy is understandable," she wrote in one of her opinions, where she dissented from a majority decision that she found "a little endearing." She added: "There is only one problem with this approach. We are a court."

Justice Brown has repudiated the notion of judges acting as if they were, in her words, "philosopher kings." Yet such expansive conceptions of the role of judges is what has enabled courts to enact so much of the liberal agenda over the past two generations, when the voting public would never have stood for such things as racial quotas or the creation of new "rights" for criminals out of thin air, if this had been done by elected officials.

Liberal-left activist groups with pretty names like the People for the American Way, the American Civil Liberties Union, and the National Association for the Advancement of Colored People all understand that much of what they want cannot be enacted into law by legislators who have to face the voters at the next election. It can only be enacted into law from the judicial bench by judges with lifetime jobs, pretending to "interpret" the law when in fact they are creating law.

Judges who oppose having courts engaging in social engineering are likely to find their own nominations opposed by liberal special interest groups, whether their names are Robert Bork, Clarence Thomas or Janice Rogers Brown. And, since the real reasons for opposition to such judges cannot be admitted publicly, phony reasons have to be concocted — and repeated endlessly through the media until they become "well-known facts."

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With Judge Bork, one of the claims was that he was against civil rights for minorities. Yet the people who made that charge could not find a single example where someone from a minority had ever lost a civil rights case in Bork's court.

Robert Bork had been on the same side as the NAACP in numerous cases when he was Solicitor General. But the facts did not matter. Stopping Judge Bork from being on the Supreme Court did.

Charges against Clarence Thomas were even dirtier — and just as unsubstantiated. The same Congressional critics who demanded that the Senate "get to the bottom of this" in response to sexual charges refused to vote for a subpoena that could have brought out facts about the credibility of the witness who made the charges.

Getting to the bottom of this was the last thing they wanted. They wanted to keep Judge Thomas off the Supreme Court. That they failed was due primarily to his own defiant defense and to the women who had once worked for him who came to testify for him.

The character assassins have perfected their art over the years — the dramatic demonstrations staged for the media, the damning charges, the strident rhetoric, the sly innuendo. The question is whether the administration that nominates people for judicial appointments is similarly skilled and similarly dedicated to defending them in the arena of public opinion.

The Reagan administration was completely blindsided by the attack on Judge Bork and never managed to get an effective response off the ground. Clarence Thomas and his former employees saved his nomination without much help from the administration that nominated him.

Is there any game plan in the White House or the Justice Department to get the truth out about Justice Janice Rogers Brown or will the lies have a field day? If there is a plan, there is still no sign of it at this eleventh hour.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Controversial Essays." (Sales help fund JWR.)


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