Thomas Sowell

Senator Charles Schumer went on television on October 22nd to announce that he was prepared to urge his fellow Democrats to filibuster, in order to prevent a Senate vote on the nomination of California Supreme Court Justice Janice Rogers Brown to become a federal judge on the Circuit Court of Appeals in Washington.

In other words, Senator Schumer is prepared to deny other Senators the right to vote yes or no on Justice Brown. He has turned the Senate's Constitutional duty to "advise and consent" on judicial nominees into the Senate minority's ability to delay and obstruct.

Such extremist tactics are especially ironic from those who have tried to portray Justice Brown as an "extremist" right-winger who would be dangerous on the federal bench. The fact that Justice Brown received a 76 percent vote of approval from California voters in an election to confirm her appointment to the state Supreme Court hardly fits the label that Senator Schumer and other liberal Democrats are trying to pin on her.

California voters are hardly known for being on the far right. Yet they gave Janice Rogers Brown the highest vote of approval among the four justices on the same ballot.

The truth carries little weight -- if any -- in political efforts to block judicial nominees. What matters is whether enough special interest groups are determined to block that person.

Many liberal-left organizations are determined to prevent Janice Rogers Brown from becoming a member of the D.C. Circuit Court of Appeals, in part because they are alarmed that she might move on up from there to the U.S. Supreme Court. If a few lies are all it takes to prevent that, they are more than willing to lie.

Why this bitter determination to prevent Justice Brown's nomination from even being voted on?

One reason is that Justice Brown's televised confirmation hearings showed her to be a very thoughtful, intelligent, and articulate black woman with a personality that would appeal to many of those watching her on C-SPAN. It could be hard for some Senators to go against public opinion and vote against her.

To people like shameless Schumer, the obvious answer is to prevent any vote at all.

Although Justice Brown has had more than 700 cases during her nine years as an appellate judge in California, Democrats on the Senate Judiciary Committee kept emphasizing things she had said in various speeches to college students and others, while her supporters kept trying to keep the focus on what she did in her day job as a judge.

Liberal emphasis on judges' personal opinions on political issues helps create the impression that judges are deciding the social merits or demerits of policies like affirmative action, abortion, gun control and the like.

Liberal judges often do. But the whole point of the judicial philosophy of people like Janice Rogers Brown is that the political merits of policies are none of a judge's business. The judge is to decide what is legal, according to the written laws and the Constitution, not what the judge happens to like personally or politically.

Justice Brown's long history in hundreds of cases shows that this is in fact what she has lived by. Liberals seize upon cases in which her votes went against their pet policies like affirmative action or teenage abortions without parental notification.

In other cases, however, Justice Brown voted against policies favored by conservatives, leading to protests by the National Rifle Association and conservative newspapers. Although Janice Rogers Brown's own personal views are conservative, she ruled on these cases on the basis of the written law, not what she herself preferred.

Liberal-left hostility to Justice Brown is based on the very opposite of what they claim. Much of the liberal agenda can only be imposed by judges because elected officials cannot keep bucking public opinion. A judge who opposes judicial policy-making is a serious danger to their agenda and they will try to stop such nominees at all costs. Hence the lynch-mob atmosphere and the filibuster threat.


Thomas Sowell

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

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