A savvy justice stalled

When California Supreme Court Justice Janice Rogers Brown faced a 1998 retention, 76 percent of Californians voted to keep her on their state’s highest court. In San Francisco, perhaps America’s most liberal city, she won 79.4 percent.

Justice Brown won more votes statewide than any of the other three justices up for retention that year — though she had cast a (dissenting) vote in favor of the state’s parental-consent law. But when President Bush nominated Justice Brown to the U.S. Circuit Court of Appeals for the District of Columbia in 2003, her demonstrated support in places like San Francisco did not matter to Senate Democrats.

At the beginning of her confirmation hearing, Sen. Richard Durbin of Illinois lectured Justice Brown about her worldview. “Let me talk to you for a minute about the world according to you as you see it,” said Mr. Durbin. “It is a world, in my opinion, that is outside the mainstream of America.”

What Mr. Durbin really meant is Justice Brown is the Senate Democrats’ worst nightmare. Born the daughter of African-American sharecroppers in 1949 Alabama, Justice Brown rose from a childhood in the segregated South to win a law degree from University of California-Los Angeles, before beginning a stellar public-service career in California.

She is an unapologetic champion of limited government, who eruditely traces her political philosophy to the Founding Fathers. Brilliant, pungently plainspoken, unmistakably dedicated to preserving the Constitution as ratified, she is manifestly fearless and a formidable potential Bush nominee for a U.S. Supreme Court vacancy whom Democrats cannot depend on to vote pro-abortion. She is no David Souter and never will be. That is why Senate Democrats fear and oppose her.

At her confirmation hearing, Sen. Patrick Leahy of Vermont tipped their hand. “But do you find a right to privacy in the Constitution?” he asked Justice Brown. “Do I find it in the text of the Constitution, the U.S. Constitution?” she said. “No.”

A few pregnant minutes later, then-Senate Judiciary Chairman Orrin Hatch, Utah Republican, coaxed Justice Brown to expand on this. “Just one question to clarify,” said Mr. Hatch. “You said that you did not find the right to privacy in the express language of the Constitution.” “That is correct,” said Justice Brown. “Nobody can find it there,” said Mr. Hatch. “Nobody can find it there,” affirmed Justice Brown.

“But,” said Mr. Hatch, “do you agree there is a right to privacy that has now been established by the Supreme Court in Griswold and… .”

“It is clearly established by the Supreme Court,” said Justice Brown, “that is the law.” Mr. Hatch then asked, “Do you accept it?” “Certainly,” replied Justice Brown.

She later made clear she believes appellate judges are bound to follow Supreme Court precedents. But that was not good enough for Senate Democrats. They do not want any judge anywhere near the Supreme Court who will not swear unwavering devotion to abortion-on-demand by judicial fiat. In other words, Janice Brown faces a new form of discrimination: She is seeking a position for which Democrats will not approve any intellectually honest person.

For almost two years, she has been the target of a Democratic filibuster. In the last Congress, she won the support of 53 senators, including two Democrats. But because current Senate rules allow a minority of just 41 senators to indefinitely block a final vote on a judicial nominee, her nomination has languished.

Last week, the Senate Judiciary Committee sent her nomination back to the Senate floor on a party-line vote. Now comes the question: Will the 55-member Republican Senate majority allow Justice Brown to be blocked by 41 Democrats again? Or will it muster the courage to stand up against the predictable bad coverage from the establishment media and change a Senate rule abused by a minority to seize what amounts to a 41-vote veto over the majority’s constitutional authority to provide advise and consent on presidential nominations?

If there ever was a judicial nominee worth fighting for, Justice Brown is it. The time for a showdown is now.

When she was a child in the South, Senate Democrats used the filibuster to defend segregation and keep Janice Brown out of whites-only schools and accommodations. Today, they use it to keep her off the federal bench. Now, no less than then, they use the tactic to maintain a morally indefensible policy they fear sustained national attention and debate would crush.

Republicans must not let them get away with it.

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