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The Anti-Brown:

Cruising around the blogosphere lately,* I've been amazed that there seems to be something approaching a consensus choice among conservatives and libertarians (at least those who blog and who contribute to comments sections of blog) for the Supreme Court: D.C. Circuit judge and former California Supreme Court justice Janice Rogers Brown [eds. acknowledgement: but for confirmability issues, Brown would certainly be among my top choices]. She's popular with all wings of the movement, from libertarians to social conservatives. She's also extremely outspoken, controversial, and likely not confirmable.

This illustrates the disconnect between the White House and its most intellectually active potential allies. In terms of her record, her outspokenessness, her visibility, her willingness to court controversy in defense of her principles, her independent-mindedness, and just about everything else, Harriet Miers is basically the anti-Brown (or, if you prefer, the Brown of the Bizarro universe). The only thing they seem to have in common is that Miers--as dull as Brown is interesting, as moderate-seeming as Brown is radical, as untested as a judge as Brown is experienced, as fiery a rhetoritician as Miers is a mouther of platitudes, as establishmentarian as Brown is individualist--may not be confirmable, either. Oh, and either woman energizes the Republican base; only that Miers has energized them to oppose the president, while Brown would have united them in support.

*The links are just very recent examples compiled from Technorati, I've seen quite a few other expressions of support for Brown over the last couple of weeks elsewhere.

Justice Fuller:
Actually, Brown is mostly just popular with the radical libertarians. The rest pretty much consider her to be a nut.
10.16.2005 9:15pm
Heartless Libertarian (mail) (www):
Well, I'm a counterrevolutionary libertarian (being counter to the the Revolution of 1937), and my preference is actually for Judge Alex Kozinsky of the 9th Circuit. But Brown would do quite well.
10.16.2005 9:52pm
VFB (mail):
Politically, the smart choice for Bush would have been to nominate Brown. Why do you assume Bush loses out politically if she's not confirmed? As was the case of Clarence Thomas, a substantial number of Blacks will support her, regardless of her positions, simply because of her color. It would put the Democrats in the position of having to alienate either blacks or assorted left wing interest groups, a prospect they are not looking forward to.
10.16.2005 10:05pm
J.Kende (mail) (www):
Could Bush be playing a longer game of poker than many of us, and be holding Brown as a third nomination to the court in case a Ginsburg or other vacancy opens up?

There are still 3+ years to go in his second term.
10.16.2005 10:10pm
Medis:
I'd like a clarification first on exactly what she thinks of atheists.
10.16.2005 10:37pm
Brian G (mail) (www):
Janice Rogers Brown would be confirmed. Watch her hearing for the D.C. Circuit. People will see her and wonder what is wrong with her that Dems won't support her. And, let's be honest here: It would take huge guts for the Dems to oppose the first black woman nominee. They can't pull out an Anita Hill on her for cover, so they'll need to dig real deep or get ridiculous. Look no further than the attempts to link Roberts to abortion clinic bombers to understand how much folly that would be.
10.16.2005 10:53pm
Byomtov (mail):
The rest pretty much consider her to be a nut.

Rightly so.

Forget the New Deal. This is a woman who thinks the Enlightenment was a disaster.
10.16.2005 11:00pm
Cornellian (mail):
What I like about Janice Rogers Brown is the fact that she was on the California Supreme Court before being nominated for her current federal appellate position. If she were really the judicial wingnut that some people would have us believe, presumably the Democrats would have been able to wheel out any number of loony decisions she wrote while on the California Supreme Court. I don't recall any such thing happening when she was nominated, and it's not as if you don't have plenty of opportunity to make loony decisions as a judge of a state supreme court.

If you think she's a nut, then cite the case that would cause a reasonable reader to come to that conclusion, not an offhand remark in a speech to a partisan crowd like the Federalist Society that's expecting to be entertained.

I'd take Janice Rogers Brown in a second over Harriet Miers.
10.16.2005 11:14pm
SimonD (www):
I have concerns that Brown might be weak on substantive due process, as indeed our newly-minted Fearless Leader demonstrated himself to be during his nominations hearings. In her famous "Whiter Shade of Pale" FedSoc speech, she seemed to diclose an affinity for the Lochner era use of substantive due process; I don't care whether SDP is being used to find non-existent constitutional rights that liberals like (Roe, Lawrence, et al) or non-existant constitutional rights that conservatives like (Lochner, Adkins, et al). As Bork points out, "Who says Roe, says Lochner and Dred Scott" (Tempting of America, 1990 ed., p.32), by the same logic, who says Lochner cannot be taken seriously if they refuse to say Roe, Lawrence et al. What makes one unenumerated right unsupported by broad and sustained historical practise any more or less valid than any other? What citerion is available?

All that having been said, I would be willing to entertain a Brown nomination, and give much more deference; that I don not know more about Brown is because I have not chosen to read her volunimous paper trail, as opposed to Miers, where there simply is none to read.
10.16.2005 11:23pm
Byomtov (mail):
If you think she's a nut, then cite the case that would cause a reasonable reader to come to that conclusion, not an offhand remark in a speech to a partisan crowd like the Federalist Society that's expecting to be entertained.

Offhand remark? It was part of a prepared speech. Presumably she thought about it and meant it.

Why are cases, which deal with a restricted set of issues, a better measure of her thinking than her freely expressed views?
10.16.2005 11:54pm
jbarntt (mail):
JRB is probably not confirmable, short of the nuclear option. The President is wise to avoid such candidates, esp. given the "Gang of 14" deal and the political weakness of the President and top Rep. congressional leaders.

That said, Miers is extremely weak and fits the Federalist 76 definition of a crony to a tee. She should be withdrawn or rejected on this ground alone. I consider this to be a non-partisan or ideological position.

Someone along the lines of Luttig, McConnell, Williams, etc. should be the candidate. Such a candidate would have a reasonable chance of confirmation.
10.16.2005 11:57pm
Cornellian (mail):
Because if she renders correct, well reasoned decisions, and did so for years on a state supreme court then one can hardly argue that her views somehow impair her ability to be a judge. If she were some kind of hard core ideologue determined to enforce her policy agenda regardless of the law, she had years to do so with full knowledge of the fact that she could not be overruled on a question of state law.

I notice you didn't cite any cases.

If you think she's a nut, then cite the case that would cause a reasonable reader to come to that conclusion, not an offhand remark in a speech to a partisan crowd like the Federalist Society that's expecting to be entertained.

Offhand remark? It was part of a prepared speech. Presumably she thought about it and meant it.

Why are cases, which deal with a restricted set of issues, a better measure of her thinking than her freely expressed views?
10.17.2005 12:11am
Visitor:
I was involved in one case before the California Supreme Court in which she was, as I recall, the sole dissenter. She there demonstrated her disregard for a proposition that has long been the law in Califonria and always will be: that when a demurrer to a civil complaint is filed, the facts alleged in the complaint must be accepted as true. The complaint had alleged a conspiracy among title insurance companies to engage in certain conduct, and she refused to accept it as true, although the demurrer had been sustained and the plaintiffs had had no discovery and no opportunity to prove their case. She relied on an ill-advised and incorrect concession by an inexperienced and ignorant appellate lawyer (it was not me), but even so it was pretty unfair and pretty radical. The case is Quelimane Co. vs. Stewart Title Guaranty Co., 19 Cal.4th 26, 60 (1998). I know there were other shockers, but can't remember them. I grant you she would be an interesting appointment, and it wouldn't bother me that much given other possibilities.
10.17.2005 12:24am
Michael K. Ausbrook (mail) (www):
Brown is just plain unqualified. When asked by Senator Specter at her confirmation hearing whether a hypothetical provision of the California Constitution that conflicts with the U.S. Constitution would have to give way to the federal provsion with which it conflicts, her answer, more or less verbatim: "I am not prepared to answer that. I am not aware of any case that says so."

That answer alone should have kept her off the D.C. Circuit. If Harriet Miers were to give such an answer in her upcoming hearing, that would be the end of the matter, I expect So why does / did Brown get a pass? Because she sat on the California Supreme Court, is more or less well-spoken, and ran on clerk power?
10.17.2005 12:26am
Visitor:
I'm the same guest that wrote about the Quelimane case. Brown had close to a decade on the Cal. Supremes. I'd be surprised if she answered that question that way. Even if she were not aware of the principle qua principle, which I can hardly believe--she is not stupid, by any means--she would surely remember certain cases so holding. Back in the Sixties the California Constitution was amended to allow racial discrimination in housing and the U.S. Supreme Court struck it down after the Cal. Supremes upheld it, if memory serves. There have been more recent examples that she surely was aware of. I believe the federal courts struck down the state constitutional amendment allowing withdrawal of certain public services from illegal aliens.
10.17.2005 12:38am
Cornellian (mail):
Hard to know what that was about without some context. What was the provision? It's hard to believe JRB is unaware of the Supremacy Clause.

Brown is just plain unqualified. When asked by Senator Specter at her confirmation hearing whether a hypothetical provision of the California Constitution that conflicts with the U.S. Constitution would have to give way to the federal provsion with which it conflicts, her answer, more or less verbatim: "I am not prepared to answer that. I am not aware of any case that says so."

That answer alone should have kept her off the D.C. Circuit. If Harriet Miers were to give such an answer in her upcoming hearing, that would be the end of the matter, I expect So why does / did Brown get a pass? Because she sat on the California Supreme Court, is more or less well-spoken, and ran on clerk power?
10.17.2005 1:16am
jgshapiro (mail):
Brown is no more of a nut than Luttig, Alito, Jones, Easterbrook, et. al. But I doubt you could get any of them confirmed to SCOTUS. If you are looking for an originalist, the best you are likely to do is to get a 'tempered' originalist (tempered=pragmatic), like Wilkinson, Kozinski or Clement (or Roberts), because the Dems will block anyone more 'pure' than that.

I don't think Brown's sex or race will save her from this reality. Most Dems are beside themselves that Thomas got through on this strategy and they won't let it happen again. Neither will the nuclear option save her (assuming she can get 51 votes), any more than it would save Luttig or the rest of them.

That doesn't mean you go with a stealth nominee like Miers, but an in-your-face nominee like Brown is even *less* likely to get confirmed.
10.17.2005 1:37am
cdow (mail):
The reality for social conservatives is that overturning Roe v Wade and Court precedents on affirmitive action would be a political nightmare for the GOP. They'd lose the gains they've made on the womens' vote and on minorities. Karl Rove knows this, and I don't think Bush really cares about the issue. He just pays lip service to the issue to win the anti-abortion vote. So in choosing Roberts and Meiers, he's picking justices who will probably vote to uphold Roe v Wade as precedent but will be reliabbly conservative on the issues that matter to the bussiness interests who are the GOP's donors, such as the Commerce Clause, labor issues etc. So there's no way he would have picked Brown, given her well-known positions on these hot-button social issues. I still don't think Meirs is qualified, given all of the more-qualified choices out there. If Bush picked an intelectual heavyweight who's like a Scalia, I would disagree with the results but I could respect their reasoning.
10.17.2005 1:41am
Witness (mail):
Here's the context:

Specter: Well, doesn't the Supremacy Clause of the Constitution mean that the equal protection of the 14th Amendment trumps California Proposition 209?

Brown: Doesn't the Supremacy Clause mean that?

Specter: Yes.

Brown: Well, the U.S. Supreme Court has not said that.

Specter: Well, the state cannot have a constitutional provision which conflicts with a U.S. constitutional provision, can it?

Brown: This is not an issue that I have looked at in detail.
10.17.2005 1:42am
Cornellian (mail):
Given the context, I took her use of "This" in the last sentence to refer to the issue of Equal Protection and Proposition 209. In other words, she's saying she's never looked in detail at the issue of whether Prop 209 conflicts with the equal protection clause of the 14th Amendment, a very different thing from saying that, assuming a conflict did exist, the state constitutional provision would have to give way. The latter is plan language Supremacy Clause, and JRB certainly knows that.

Specter: Well, doesn't the Supremacy Clause of the Constitution mean that the equal protection of the 14th Amendment trumps California Proposition 209?

Brown: Doesn't the Supremacy Clause mean that?

Specter: Yes.

Brown: Well, the U.S. Supreme Court has not said that.

Specter: Well, the state cannot have a constitutional provision which conflicts with a U.S. constitutional provision, can it?

Brown: This is not an issue that I have looked at in detail.
10.17.2005 1:51am
Visitor:
Same guest writing again. That looks pretty bad, I must admit. She sounds like she is floundering for time and that her thinking cap is not on--or that she doesn't have one to put on. Her opinions and prepared speeches show intelligence. Nust they be attributed to the efforts of others? If so, she has carried on a huge bluff for a long, long time. But she wouldn't be the first, would she?
10.17.2005 1:57am
Challenge:
I am so sick of hearing that nobody more conservative than Roberts would be confirmed. There is only one way to find out, right?

Who cares if a nominee is rejected. So we try again. Bush failed to even TRY to fulfill his campaign promise to appoint "strict constructionists" to the Court.

Had he offered up Luttig or Estrada or JRB, and was defeated, then maybe he'd have some cover. But did he do that? Either the President doesn't know an originalist from his backside, or he just lied when he promised to appoint them. Neither possibility is particularly comforting.
10.17.2005 2:28am
William Baude (mail) (www):
It's even more clear from the context of the conversation that Senator Specter and Brown were talking past one another. More of the conversation is here.

Also, here is an excerpt from later on the same day:

Orrin Hatch: Now the Ninth Circuit court of appeals . . . . has ruled, and this is noted in the majority opinion of the Proposition 209 case, that Proposition 209 does not violate the Equal Protection clause. Also federal courts have ruled that that proposition does not violate federal civil rights statutes. Now in your opinion, I would note that you acknowledge the Supremacy Clause would dictate federal law would prevail. If Proposition 209 violated the U.S. Constitution or federal statutes, then literally federal law would prevail. Is that correct?

Justice Brown: Of course.
10.17.2005 2:44am
Misha Tseytlin (mail):
"Either the President doesn't know an originalist from his backside"

At a panel at Georgetown Law about the Roberts confirmation hearings put on by the Federalist Society, Roger Pilon was asked about Bush's promise to appoint "judges in the mold of Scalia and Thomas." And his answer was something like "that exhausts his knowledge on the subject." I think given that quote, the answer to the above statement is pretty obvious. Thats what the Republicans get for selecting a president that is "electable" rather one with judgment and intellect. Basically, the Republican Party made basically the same mistake in selecting Bush as Bush has made in selecting Miers... Now look at the mess we are in.
10.17.2005 2:49am
Patrick (mail):
Of course, it sounds ridiculous, but one thing that would get Brown confirmed is Mier's withdrawal, or rejection, as long as this was attributed to lack of qualifications and cronyism. Enter Brown, or Jones, certainly qualified and certainly not a 'crony'.

I agree that the black woman thing would be tough for the democrats. WOuldn't worry Ol' Ted, of course, but how many of the other dems are thinking about 2008? Clinton and Biden (enough to pass her anyway); any others?

Unfortunately, I actually don't think the scenario gels - I suspect that the President intends simply to get Miers nominated - which he may well yet do.
10.17.2005 2:54am
David M. Nieporent (www):
Interestingly, as far as the "Brown is not confirmable" argument, we all know that the One True Issue for any confirmation hearing is, "What are the candidate's views on Roe?"

Brown's views on Roe, to the best of my knowledge, are unknown. She voted to uphold a parental notification law, IIRC, but most people not wholly owned by NARAL think that such laws can be reasonable. Therefore, she's sort of a wild card as a nominee.
10.17.2005 4:38am
Cornellian (mail):
It's the issue that gets the media attention, but I wonder if it's really an issue for the public at large, or even that small segment of the population that has taken more than a fleeting glance at supreme court caselaw. Lots of people support the Republican party for reasons other than abortion, I'd guess probably the majority (though some of those people might also happen to be pro-life). Ditto for supporters of the Democratic party.

It's interesting to compare it to another case that supposedly outraged conservatives - Lawrence v Texas. Where's the campaign to get that decision reversed? Even the campaigns to amend state constitutions to restrict government recognition of marriage to opposite sex couples don't deal at all with the subject matter of Lawrence v Texas. I notice the conference call of leading evangelicals to discuss the Miers nomination referred to in another posting here says they talked about Roe and various other subjects including same sex marriage but again, nothing about Lawrence v Texas. Why the difference?

Interestingly, as far as the "Brown is not confirmable" argument, we all know that the One True Issue for any confirmation hearing is, "What are the candidate's views on Roe?"
10.17.2005 6:22am
OpposeMiers (mail) (www):
I think it was obvious that Specter's question was vaguelt worded, and Brown was answering BOTH SIDES of the question, which is why she says:

Brown: Well if you're asking if a state would be precluded from having a higher standard, I don't think so.

Technically, a state law and a federal law "conflict" when the state law provides for more rights, but the federal law does not cancel out the state law: it is simply the baseline (i.e., the state cannot go below the federal standard).
10.17.2005 6:40am
OpposeMiers (mail) (www):
Federal statutes in the US do not harmonize -- prevent going above and below - as they do in the EU. Specter is on some crazy foreign law $%^&again.
10.17.2005 6:42am
Eliza (mail):
I adore JRB and have followed her career somewhat closely for the last couple of years: she would be a brilliant and breathtakingly bold choice. Miers is exhibit number one for the Peter Principle. I understand she was a splendid staff secretary.
10.17.2005 12:18pm
Decius (www):
Calling yourself a libertarian is not just a snazzy way of saying "Hey, I'm a Republican, but I'm cool." It actually means something, in particular a strong support for individual rights. Most Americans believe that they have certain inalienable rights that the federal Constitution protects from encroachment by all levels of government. Brown is widely quoted as being opposed to the idea of incorporation. How this radical view could be palitable to a libertarian is beyond me. Libertarians don't support judicial nominees who would erode individual liberty.

It might be argued that you want individual rights but you think they ought to be protected by the states rather then the federal government. I think this is either a delusion or a deceit. Either the federal government protects individual rights or it does not. Having the federal government protect individual rights (in the specific context of judicial review of legislation) cannot be injurous to individual rights. States might protect individual rights more vigorously, but why would a libertarian oppose having a base-line?

Perhaps I am misreading Brown? I enjoyed her defense of the 4th Amendment quoted in this blog last month. But how can you be bothered by the application of the 4th amendment to minor infractions if you don't think local governments ought to be constrained by the 4th amendment in the first place?
10.17.2005 1:29pm
Byomtov (mail):
I notice you didn't cite any cases.

I'm not a lawyer. I don't live in California. I'm unfamiliar with her work as a judge.

Because if she renders correct, well reasoned decisions, and did so for years on a state supreme court

Am I to take your word that she does this? We have a visitor who disagrees.

In any case, why is this the only evidence about her thinking that is relevant? If that were so then Roberts' record would be thin indeed.
10.17.2005 2:12pm
Jeremy Pierce (mail) (www):
It's also worth noting that Bush may not have been able to nominate Brown if he'd wanted to. She may have been one of the several people on the shortlist who removed themselves from consideration. If there were several, and the shortlist consisted of women, then Janice Rogers Brown, Priscilla Owen, and Edith Hollan Jones all have a good chance of being among those who weren't interested. There aren't that many people who would have been on the shortlist.
10.17.2005 4:48pm
devil's advocate (mail):
i am not sure the R base opposes miers, just the smart ones. dobson is the man who runs the base these days. and i dont think he cares much for professor-types. he gets his answers from the bible. see orin's post above this one.

only activist elites are upset with miers, the base knows she's bush's pick and that's all they want to know. after believing everything the Rs do is for the good of the war on terror and creating jobs, how do you create a narrative for bush to be wrong in the eyes of the base after they have been led to reject all other criticism of him? now the same people how urged people to stick with bush ask Rs to criticize him? it's too much of a flip-flop.

libertarians especially have been used and abused by republicans again and again. Most so-called principled conservative outlets are corporate party tools, find out where their $ comes from, go ask the real libs at CATO how good the Bush Admin has been to them. if there was a viable libertarian party in this country maybe I'd vote for them too. from my lib view, if stuck with the 2 party system, I'd rather be ruled by bureaucrats that theocrats. if you think the corporate boys keep the raving revs in line within the GOP, i invite you down to tx, where the real GOP lives. the R state gov down there signs bills in churches. true story.

the GOP base does not oppose the Miers nomination. they do not understand con law as the elitist right leaning law profs do. they only want results and W is not too dumb to give them what they want. as a pro-choice dem not fully convinced by roe's reasoning, I perversely hope roe is repealed on a 5-4 vote, I dream of the political fallout...bring it on as they say. i dare you. scotus is politics not law, dummy. let's all cry a tear and move on. maybe a federally mandated civics course would correct the public mind? just kidding...

"On Oct. 3, the day the Miers nomination was announced, Mr. Dobson and other religious conservatives held a conference call to discuss the nomination. One of the people on the call took extensive notes, which I have obtained. According to the notes, two of Ms. Miers's close friends-- [Nathan Hecht and Ed Kinkeade,] both sitting judges--said during the call that she would vote to overturn Roe.
. . . [The conference call was] a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"
"Absolutely," said Judge Kinkeade.
"I agree with that," said Justice Hecht. "I concur."
10.17.2005 4:49pm
Virginia:
The reality for social conservatives is that overturning Roe v Wade and Court precedents on affirmitive action would be a political nightmare for the GOP. They'd lose the gains they've made on the womens' vote and on minorities.

The percentages of blacks and Hispanics who oppose, or are uncertain about, race preferences are far higher than the percentages of blacks and Hispanics who vote Republican. If anything, I think the GOP would gain votes among minorities who oppose preferences and would appreciate a party that shared that opposition instead of pandering to them like they were all members of the NAACP/La Raza.

I think you're badly mistaken about overturning Roe, too, but I'll leave that argument alone for the moment.
10.17.2005 6:03pm
Unnamed Co-Conspirator:
SimonD, what would you have had Roberts say about SDP? That he's voting to put a stop to all this incorporation nonsense the first chance he gets? Anyway, I don't like SDP any more than you do, but I'm not (and I presume you're not either) in a position that requires me to decide whether to use the power of judicial review. Roberts' judicial conservatism will in all likelihood prevent his voting for any radically originalist interpretation (you know, correct, but different from conventional interpretation) of the 14th amendment's due process clause, if it means declaring a legislative act unconstitutional. That's not necessarily a bad thing, and I don't think it will prevent him voting to overturn Roe v. Wade, for what that's worth. Roberts' remarks about humility from the bench give us a clue here -- look up "judicial arrogance" and you see a picture of Harry Blackmun standing next to his Roe v. Wade opinion, relying as it does not only on SDP but also on emanating penumbras and all other sorts of murkiness regarding guaranteed rights in order to do what legislatures do, only "better." Unless JR was pulling our leg about judicial humility, he's a vote against Roe because proper respect for the other branches of government and for the states demands that the federal judiciary not remove the issues in that case from the voters and their representatives.
10.17.2005 7:17pm