Justice for Justice Brown

Posted: Oct 23, 2003 12:00 AM

Be clear why the Congressional Black Caucus and other so-called civil-rights groups oppose California Supreme Court Justice Janice Rogers Brown's appointment to the U.S. Court of Appeals for the District of Columbia. It is not because Brown wrote a decision that upheld Proposition 209, the voter-approved initiative that ended racial and gender preferences in California state hiring, contracting and admissions. It's not because she was on the losing side of a 4-3 California Supreme Court ruling that overturned a law requiring parental consent for a minor's abortion.

What really gets under caucus members' thin skins is that Janice Rogers Brown is a black conservative.

You see, the all-Democratic caucus holds that it alone represents the African American community, that the Democratic Party essentially owns black Americans and that African Americans owe the Democratic Party. Thus, caucus members will hound any black person who escapes the liberal plantation.

Wednesday's Senate Judiciary Committee hearing on Brown began with Chairman Orrin Hatch, R-Utah, fulminating against a much-circulated cartoon that depicted President Bush ushering Brown -- drawn to look like a fat U.S. Supreme Court Justice Clarence Thomas wearing a women's wig -- into a room where Secretary of State Colin Powell and National Security Adviser Condoleezza Rice stood clapping.

But it wasn't the ugly depiction of the attractive Brown that was offensive -- it was the warning to all African Americans that if they think independently, they'll be ostracized in much the same way that whites and blacks at one time routinely were shunned for marrying "outside their race."

Brown's response: "I am going to look at this as an unwitting compliment." That's typical of her fresh approach. She questions things. She doesn't mistake conventional wisdom for fact.

Sen. Richard Durbin, D-Ill., took Brown to task for frequent cases where she was a "lone dissenter."

Sometimes, she was the sole voice of reason. In a case, for example, that dealt with the question of whether rape could occur if a woman said no during sexual intercourse, Brown agreed that it could but argued that the facts of the case -- she never quite said no, and he had his hand in a cast -- failed to establish guilt beyond a reasonable doubt. In another lone dissent, Brown opposed the warrantless search of a man arrested for riding a bike on the wrong side of the street. Brown suspected racial profiling. "No one would get arrested unless he looked like he did not belong in the neighborhood," she wrote. "That is a problem. And it matters."

No wonder liberal law professors such as Gerald Uelman of Santa Clara University and Stephen Barnett of University of California, Berkeley's Boalt Hall School of Law endorse her confirmation. But not the Black Caucus, which disingenuously argued, as Durbin did, that Brown is outside of the "mainstream" of America.

No, the caucus is outside of the mainstream.

Her detractors point to the decision Brown wrote that upheld Proposition 209 -- as they ignore the fact that the California Supreme Court voted 7-0 in agreement with her. Not to mention that 54 percent of Californians voted for Proposition 209.

So if "mainstream" is important, California Sens. Dianne Feinstein and Barbara Boxer ought to heed the 1998 vote in which 76 percent of Californians approved of retaining Brown -- and place their votes to confirm her to the Court of Appeals in D.C.

Let me posit that Republicans played politics with President Clinton's judicial nominees and that the Dems have every right to scrutinize Brown's decisions.

But at the end of the day, this vote will be about more than partisan sniping. It will be about race.