Thomas Sowell

Editor's Note: Part one was published Oct. 21, 2003

 "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."

Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

Creators Syndicate