April 25, 2005
Democracy in reverse gearBy William J. Becker Jr.
I have a dream. That one day Roe v. Wade, as dreadful a decision as Dred Scott, will either row or wade into the deep waters of oblivion and remain forever marooned as the narcissistic transgression of a morally indigent court.
I have a dream. That one day all judicial nominees of all colors and orthodoxies will be judged not by the color of their orthodoxies, but by the content of their qualifications.
I have a dream. That one day all judicial candidates vowing to faithfully interpret the law will pass through committee and receive the up—and—down vote before the full membership of the U.S. Senate to which they are entitled. That originalists will one day outnumber judicial activists and cede back to the legislative branch their constitutional authority to make law.
I have a dream. That California Supreme Court Justice Janice Rogers Brown will be appointed to the D.C. Circuit Court of Appeals.
Is it an impossible dream? When President Bush nominated Justice Brown to fill a D.C. Circuit Court of Appeals vacancy for a second time, the 'progressive' left went apoplectic, warning that 'a throwback judiciary' would 'reverse three generations' worth of gains in civil liberties, individual rights and common—interest legislation' and calling on Bush to nominate candidates whose views are within the 'mainstream' of judicial thought.
If the Equal Protection Clause of the Fourteenth Amendment applied to judicial nominees, the discriminatory policy of filibustering every candidate possessing a record that imperils Senate Democrats' 'progressive' policy agenda would be seen for what it is: cheap, dissolute politics. It is an unprecedented act of government obstructionism that admits to desperation and impotence.
Quote marks girdle 'progressive' to emphasize the arrogation of a word that in its usual and ordinary meaning stands for precisely the opposite of what Democrats (and one Independent) are accomplishing in a regressive politicization of the confirmation process. What is particularly 'progressive' about placing the brakes on representative government by filibustering nominees?
Last Thursday, the Senate Judiciary Committee placed Justice Brown's nomination on the Senate' executive calendar. Just as they did in 2003, Democrats have promised to kill the nomination. Brown enjoys a majority of support from Senate members (more than 51 senators), but a supermajority is required to defeat a filibuster (more than 60 senators).
As my colleague, Dr. John Eastman, a Chapman University constitutional law professor and an expert on the congressional filibuster, testified before the Judiciary Committee two years ago, the power to give advice and consent to a president's choice for federal judgeship is expected to reside with a majority of senators. Where less than a majority can frustrate the majority, the advice and consent role becomes illusory. Thus, filibustering judicial nominees who enjoy majority support is a constitutionally hostile power grab.
With a Republican threat to end the filibuster rule looming, and action expected this week on that threat, Sen. Harry Reid, D—NV, has promised to virtually shut down the senate to prevent the chamber from voting on Bush's nominees. The majority won't play by the minority's rules, so break their legs. Now, THAT'S progressive.
There is simply nothing 'progressive' about the left's agenda; it aims to dismantle majoritarianism. This is democracy in reverse gear.
And what exactly are these 'progressives' defending? Abortion? Sodomy? Gay marriage? These are constitutional rights? Well, of course, now they are, or soon will be, because, as emanations and penumbras go, the rippling expansion of privacy rights is as infinite as the meaning of a word irrigated with subjectivity.
It is precisely 'mainstream' judicial candidates who threaten Democrats as they game the process with hysteria, molesting principled candidates with unwarranted charges of extremism.
Who can forget the battering Brown took by leftist insurgents during the first nomination process, when a web site published a racist cartoon portraying her as a frumpy, afro—headed Step 'n' Fetchit stereotype strutting to the applause of U.S. Supreme Court Justice Clarence Thomas, Colin Powell (a former Army general and secretary of state) and Dr. Condoleeza Rice (a former university provost and the first black female secretary of state)? The cartoon suggested that their collective representation of African—Americans in the Bush administration presents a setback for black Americans. Who but a 'progressive' would get that?
At her confirmation hearing on October 22, 2003, Judiciary Committee Democrats sent her back to moot court, branding her a judicial activist, as if to suggest that judicial activism displeases them.
It was 'progressive' Charles ('Chuck') Schumer, D—NY, who ominously summed up the theme of opposition to Brown's appointment in 2003 by charging that she 'not only wants to turn back the clock, she wants to turn back the calendar, and not just by a few years, but by a century or more.'
A female African—American Supreme Court justice from California, a former Alabama sharecropper's daughter, climbing the celestial ladder of her profession toward one of the most powerful positions in the federal judiciary wants to turn back the clock? A century or more?
The 13th Amendment to the Constitution, abolishing slavery, and the 19th Amendment, extending to women the right to vote, were ratified in 1865 and 1920 respectively. Schumer must believe Brown is radically retrograde to want to reverse the successful advancement of civil rights in this country. But the desire of Schumer and 'progressive' thinkers like him to hear themselves talk at least ought to be tempered by the knowledge that their preposterous musings will be heard by others.
Admittedly, Justice Brown occasionally stumbled in her congressional testimony. Claiming not to be 'an ideologue of any persuasion,' she retreated when confronted with a speech presented to the Federalist Society where she described her host university as 'a rare bastion, nay, beacon of conservative and libertarian thought' and remarked that 'There are so few true conservatives left in America that we probably should be included on the Endangered Species List.'
Asked to reconcile her statement to the committee with the seemingly contradictory remarks from her speech, Justice Brown explained that her ideology does not infect her judgment on the bench, asserting that a review of her decisions reveals an 'evenhanded application of the law.'
Does it? Of course it does, at least to the degree that former American Civil Liberties Attorney Ruth Bader Ginsberg's body of work does; but that won't satisfy 'progressives,' who rip her holdings from their contextual hinges to build an impossible case that she is, what, racist? Her views on affirmative action, an issue she just might know something about, have been particularly trashed.
In Hi—Voltage Wire Works v. City of San Jose (2000) 24 Cal.4th 537, Brown wrote the majority opinion invalidating a statute that created 'set asides' for minority and women business enterprises on the ground that California Proposition 209 prohibits preferential treatment on the basis of race, sex, color, ethnicity or national origin. Although all seven justices signed the opinion, which was based on an amendment to the California constitution created by voter referendum, Brown, in particular, fell under attack for opposing affirmative action.
In a rare example of party disunity calculated to indulge the crocodile appetite of the 'progressive' left, Chief Justice Ronald M. George's concurrence characterized Brown's opinion as a 'distortion of history,' but seemed content to leave the world guessing the historical inaccuracies he found so objectionable. The AFL—CIO characterized her opinion in that case as 'harsh rhetoric' that 'resembled racist and segregationist laws that predated landmark civil rights laws.' It is as though 'progressives' have failed to update talking points originally drawn up to slap the charge of racism on white people. But Brown is black, and that charge won't stick.
The difficulty for 'progressive' Democrats and certain Republican enablers is that they grow disoriented when struggling to understand how a racial minority can be politically conservative. Their heads cock at the notion that Brown, Powell, Rice, Thomas, Ward Connerly, Miguel Estrada and others reject charity based on skin color, that they take pride in a work ethic, a strong military, family values, Judeo—Christian principles, discipline, and, yes, working within, not against, the system, sometimes even within a Republican administration.
Whether blacks need lifting up by others or by themselves has been fiercely debated generation after generation, pitting W.E.B. DuBois against Booker T. Washington in one era and Malcolm X and Martin Luther King, Jr., in another. Today it pits Democrats against Republicans.
At the 2003 hearing, Brown explained how her late grandmother was instrumental in shaping her character. She poignantly recalled a woman who did not suffer fools gladly and who boasted a strong sense of dignity.
'She taught me when I was very little that there are some things that you have to submit to,' Brown related.
'I grew up in an era when everything was segregated, and so she would say, well, you have to go to a school that's segregated because you must get an education, and you have to go to a hospital if you are sick, and if it's segregated, you don't have any choice.
'But about those things where you have a choice, you will not do that. You will not go in the back door of movie theaters. You will not go in the back door of the bus station. You will not go in the back door of a place to eat.'
Brown's grandmother did not have a law degree, but she had common sense and a proportionate sense of integrity. 'You do that job the best you can, and someday when you go on to something better—and you will—they should say about you 10 years later, that Janice, she was the best dishwasher we ever had.'
California Supreme Court Justice Janice Brown has done her grandmother one better. She does not deserve to have her confirmation hearings delayed one minute longer by obstructionist Democrats. She does not deserve to be victimized by the Democrat—invented judicial filibuster.
If, as Rudyard Kipling counseled, it is permissible to dream so long as one resists the temptation to make dreams one's master, then I have a dream, which I share with Justice Brown's grandmother. 'Whatever you do,' the elder woman instructed, 'be a legend.' Now, that's progressive thinking.
William J. Becker, Jr. is an attorney in Los Angeles.