As everyone has no doubt heard by now, the Senate Judiciary Committee, on party-line votes, sent the appeals court nominations of California Judge Janice Rogers Brown and Texas Judge Priscilla Owen to the Senate floor for consideration. If a nomination is going to spark the “nuclear-option” fight, it’s going to be one of these two.
Indeed, that’s been the plan for a while. Way back in February, Senate Republicans decided that using a woman — or better yet, an African-American woman — would have the best public relations impact in their fight with Dems over the nomination process. The implication is going to be that Dems are somehow misogynistic racists, while Republicans are champions of tolerance, feminism, and diversity. (Presumably, some will even make this argument with a straight face, though I’m not sure how.)
But I thought it might be helpful to step back for a moment, look beyond the partisan wrangling and tactical moves, and realize that Brown and Owen would make really horrible federal judges. Forget about filibusters and nuclear options for a moment, and realize that Dems should not only block these nominations, they should brag about it.
Janice Rogers Brown has no business being nominated for the second highest court in the nation. She not only thinks FDR was a socialist, she’s even embraced the “Constitution in Exile” movement.
Known for her vigorous criticism of the post-New Deal regulatory state, Brown has called 1937, the year the Supreme Court began to uphold the New Deal, “the triumph of our socialist revolution,” adding in another speech that “protection of property was a major casualty of the revolution of 1937.” She has praised the court’s invalidation of maximum-hour and minimum-wage laws in the Progressive era, and at her Senate confirmation hearing in 2003, she referred disparagingly to “the dichotomy that eventually develops where economic liberty — property — is put on a different level than political liberties.”
Brown has rejected the principle of church-state separation; she’s endorsed age discrimination; she’s even equated Social Security with “cannibalism.” In opposing her nomination, the New York Times wrote:
Of the many unworthy judicial nominees President Bush has put forward, Janice Rogers Brown is among the very worst. As an archconservative justice on the California Supreme Court, she has declared war on the mainstream legal values that most Americans hold dear. And she has let ideology be her guide in deciding cases.
She’s so far out on the right-wing of American judicial thought, she can’t even see the mainstream. The fact that Bush even nominated her for a lifetime seat as an appeals-court judge is an outrage.
And then there’s Priscilla Owen. How bad a judicial nominee is she? Alberto Gonzales, Bush’s own attorney general, has condemned her for “unconscionable” judicial activism.
During their time together on the Texas Supreme Court, [Gonzalez] repeatedly criticized Pricilla Owen — another judge that Bush re-nominated — for ignoring the law. In one case, relating to requirements for minors to “judicially bypass” parental consent requirements for abortion, Gonzalez characterized Owen’s narrow view of the statute as “directly contradicted” by the legislative history and “an unconscionable act of judicial activism.” In another case, where Owen would have effectively rewritten the law to protect manufactures of products that cause injury, Gonzales called Owen’s opinion an attempt to “judicially amend the statute.” Gonzales also joined an opinion that described an Owen’s dissent, which would have allowed certain private land owners to exempt themselves from environmental regulations, as “nothing more than inflammatory rhetoric.”
The Minneapolis Star Tribune noted, “Even her conservative colleagues have commented on her habit of twisting the law to fit her hyperconservative political views.” The San Antonio News Express found that “her record demonstrates a results-oriented streak that belies supporters’ claims that she strictly follows the law.” The Houston Chronicle concluded that she is “less interested in impartially interpreting the law than in pushing an agenda.” Her hometown Austin American-Statesman said Owen is “so conservative that she places herself out of the broad mainstream of jurisprudence,” and added that she “seems all too willing to bend the law to fit her views, rather than the reverse.”
Owen also has a Tom DeLay-like attitude towards professional ethics, including having taken contributions from law firms and corporations — including Enron and Halliburton — and then, without recusing herself, ruling in their favor when their cases came before her.
One of these two nominations will come to the Senate floor very soon, almost certainly sparking a Dem filibuster. Dems needn’t be shy about their efforts.