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Jewish World Review June 27, 2005 / 20 Iyar, 5765 To Confirm Their Judge, Republicans Abandoned Their Ideas By Jonathan Rauch
http://www.JewishWorldReview.com |
In floor debate on June 8, Sen. Trent Lott, R-Miss., mused, "I don't
think this has been one of the Senate's proudest hours." As he spoke,
the Senate was preparing to vote along party lines to confirm California
state Supreme Court Justice Janice Rogers Brown to the U.S. Court of
Appeals for the District of Columbia Circuit, after one of the fiercer
confirmation battles Washington has seen recently. Actually, the Brown
debate was a good one: passionate, well briefed, and more revealing than
most. But it revealed less about Brown than it did about the Republicans
who confirmed her.
Brown is a remarkable woman. She is the daughter of an Alabama
sharecropper, as the Republicans repeated ad nauseam. She rose from a
segregated childhood to become a prominent jurist with a sizzling pen
and fierce convictions. Her worldview is that of an uncompromising
libertarian, particularly as concerns property (or economic) rights.
Property and contract are, for her, the lifeblood of liberty; and when,
in the late 1930s, the country and the Supreme Court began treating
property rights cavalierly, they set loose an inexorably advancing
leviathan state. To Brown, moreover, it makes no sense to treat speech
and privacy rights as sacrosanct but property rights as trivial, when
the Founders viewed all those rights as of a piece.
More striking than Brown's philosophy is her tendency to express it in
language reminiscent of Barry Goldwater in his intemperate prime. In a
2000 speech to the Federalist Society in Chicago, she said, "We no
longer find slavery abhorrent. We embrace it. We demand more. Big
government is not just the opiate of the masses. It is _the_ opiate: the
drug of choice for multinational corporations and single moms; for
regulated industries and rugged Midwestern farmers and militant senior
citizens." She spoke of the Supreme Court's belated acquiescence to the
New Deal as "the Revolution of 1937," resulting today in "a debased,
debauched culture." There is much more in this vein, and not just in her
speeches. In a 2002 dissent involving a San Francisco housing
regulation, she declared that private property "is now entirely extinct
in San Francisco," replaced by "a neo-feudal regime."
Democrats charged that Brown's temperament is radical and her views
nutty. In her defense, Senate Republicans had a good deal to say. Most
interesting, though, is what they did not say. With only few and brief
exceptions, they were unwilling to defend her philosophy.
They recounted her life story. (Can you say "sharecropper's daughter"
898 times?) They listed endorsements. They harped on the 76 percent vote
she won in a 1998 state retention election. (Absent scandal, that kind
of support is standard for judges in unopposed retention elections.
Anyway, if a majority of Californians can't be wrong, can we look
forward to Republicans' revising their positions on medical marijuana
and stem-cell research?)
A frequent refrain was that nominees should not be disqualified for
using, as Judiciary Committee Chairman Arlen Specter, R-Pa., put it,
"colorful phraseology." Said the chairman, "It is true that she has made
undiplomatic statements, but she is not in the State Department." Sen.
Mitch McConnell, R-Ky., debuted a theory of judicial confirmation that
Democrats may have occasion to quote back to him: "We ought not [to]
hold against nominees — particularly those who have written a good bit,
published a good bit — their provocative statements."
They and other senators went on to argue that Brown's personal opinions
should be distinguished from her judicial philosophy, which is one of
restraint. The New Deal, they affirmed, will be safe in her hands. They
noted that Brown has frequently written or joined in rulings that uphold
government programs and regulations.
This is true. Writing for the majority in a 2000 case, for example, she
upheld an assault-weapons ban that she openly detested. The legislature,
she said, needed leeway to enact unfair and ineffective laws as long as
it did not unduly burden individual or minority rights.
On the other hand, to claim, as Republicans did, that Brown's firebrand
rhetoric reflects (a) mainstream opinion that (b) she won't act upon is
as disingenuous as it is incoherent. "She has certainly expressed more
sympathy for Lochner" — a 1905 Supreme Court decision, subsequently
overturned, holding that property rights trumped government regulation
— "than is currently respectable in mainstream legal circles," says
David Bernstein, a George Mason University law professor who is
sympathetic to Brown's views.
Presumably Brown's rulings will reflect her worldview. So the question
comes back to whether her worldview is sound. Democrats merrily flayed
Brown's small-government philosophy. More surprising was that
Republicans declined to defend it.
An exception was Sen. Orrin Hatch, R-Utah. "The fact is, what she said
was not that radical," he said on June 8. "When she claimed that an
increasing public sphere tended to undermine the individualist spirit
present at America's founding, she was saying nothing other than what de
Tocqueville, Ronald Reagan, Booker T. Washington, Robert F. Kennedy
[Robert F. Kennedy?], and countless political philosophers and
economists have noted over the years.... My sense is that part of
Justice Brown's commitment to rugged individualism is related to this
hard-learned lesson: There are limits to what government can accomplish.
That is precisely what President Reagan stated in his first Inaugural
Address."
Correct. Reagan said that government was the problem, not the solution
to our problems — a view that was not and still is not "mainstream,"
but that he was never reluctant to defend. Hatch's brief defense,
however, was about as much support as Brown's libertarian philosophy
received, apart from a sentence or two from Sen. Jeff Sessions, R-Ala.,
to the effect that "private property is protected in our Constitution as
much as free speech."
Otherwise, Republicans ran away from Brown's ideas as fast as their legs
could carry them. Specter listed, approvingly, government regulations
she has upheld. Sessions: "She has ruled on hundreds of cases affirming
government regulations, for heaven's sake." Sen. Jim DeMint, R-S.C.:
"While she would likely describe herself as a person who believes in
small government and limited regulations ... Justice Brown has voted
consistently to uphold economic, environmental, consumer, and labor
regulations." Lott: "She has consistently voted to uphold regulations in
every walk of life." You would almost think she was Walter Mondale.
Here arises a question for Republicans. If Brown's views were
defensible, why not defend them?
Two possibilities present themselves. One is expediency, or, to use the
sort of strong language that Brown herself sometimes favors, cowardice.
On this theory, Republicans agree with Brown but know her views are
controversial, indeed unpopular, and prefer not to make a case for them.
If so, this would not be the first time expediency has won the day in
politics, but Republicans should beware. Liberals learned the hard way,
with court-approved or court-imposed policies like forced busing and
racial quotas, how dangerous it is to put in place policies and nominees
that they could not defend in public debate. If Republicans hope to
install small-government judges without publicly embracing
small-government views, they are traveling the same road that led
Democrats to political purgatory and made "liberal" a dirty word.
If so, Brown's nomination put Republicans in a bit of a pickle.
Endorsing her philosophy would tie their hands; renouncing it would
leave everyone wondering why they wanted her on the bench at all. Rather
than confronting the tension between Big Government conservatism and
small-government nominee, the Republicans pretended there was no
tension. They maintained that Brown, like the Washington Republican
Party itself, would denounce Big Government without actually doing
anything about it.
Either way, Republicans have come a long way from Reagan, who would have
spoken as proudly of Brown's ideas as of her childhood. Lott was almost
right: The Brown debate was not a proud hour for principled Republicans.
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JWR contributor Jonathan Rauch is a senior writer and columnist for National Journal. Comment by clicking here.
© 2005, Jonathan Rauch
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Arnold Ahlert | |||||||||||
