Jewish World Review Oct. 21, 2003 / 25 Tishrei, 5764

Thomas Sowell

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A lynch mob gathers | The nomination of Justice Janice Rogers Brown of the California Supreme Court to become a federal Court of Appeals judge has brought out vicious special interest groups with their long knives — and a long record of smears and character-assassination, going back to the campaign of wholesale misrepresentations that defeated the nomination of Judge Robert Bork in 1987.

Leading the charge against Justice Brown, as it did against Judge Bork 16 years ago, is the grossly misnamed organization "People for the American Way." This is a far-left group with only contempt for American traditions and culture. They want judges who will dismantle the Constitution of the United States for the sake of current left-wing fashions like racial quotas and unlimited abortions.

They obviously think that the pious words in their name will conceal the brutal realities of what they are and what they do.

Judges who believe that their job is to uphold the Constitution, instead of replacing it with left-wing social engineering, are anathema to "People for the American Way." That they are spearheading the character assassination of Justice Janice Rogers Brown is completely predictable.

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Because Justice Brown is black and conservative, she is being denounced as "another Clarence Thomas." Like Clarence Thomas, she is also being denounced as "unqualified" by people who have never read a word she wrote. Anyone who does read Justice Brown's opinions will discover a wealth of knowledge, a command of logic and an unflinching honesty about the law and about some efforts of her colleagues to compromise legal principles.

"Error," Justice Brown said in one dissent, "does not improve with repetition. The third time is not the charm." In another dissent, this time in a child-custody case, Justice Brown said: "Today's decision maximizes the self-interest and personal convenience of parents, but poorly serves the state's children who deserve as much stability and security as legal process can provide."

What the left-wing can never forgive her for is upholding the right of California voters to ban racial quotas. More than four and a half million Californians voted for Proposition 209, which outlawed group preferences and quotas. But liberals wanted the state Supreme Court to over-rule the voters. Janice Rogers Brown refused and instead wrote the majority opinion upholding the voters' right to make the laws under which they live.

In the country at large, the real issue behind all the sound and fury is that special interest groups like "People for the American Way" want judges to impose items in the left-wing agenda that cannot be imposed through the democratic process.

Nowhere in this country are racial quotas likely to get voter support. But such quotas exist because elected officials do not have to risk their careers by voting for quotas because they can leave that to judges.

That includes not only liberal judges but also weak-kneed "conservative" judges like Justices Sandra Day O'Connor and Anthony Kennedy, who on issue after issue tend to split the difference and go along to get along.

What really scares the left about Janice Rogers Brown is that she has guts as well as brains. They haven't been able to get her to weaken or to waver. Character assassination is all that the left has left.

Look to see Justice Brown portrayed as evil incarnate and a threat to the republic. Already the character assassins are throwing around words like "extremist" and a conservative "activist." The truth has not cramped their style in the past and is unlikely to do so during the current confirmation hearings.

The real question is whether the administration that nominated Justice Brown will mount a serious counter-attack or leave her out there, twisting in the wind, the way it did with Miguel Estrada and its other judicial nominees.

Have you seen anything by anybody, anywhere, defending Janice Rogers Brown? The attackers have been mobilizing for months but there is very little sign that those who nominated Justice Brown have made any timely efforts to mobilize counter forces.

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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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