- The Washington Times - Thursday, May 19, 2005

As the battle over judicial nominees and the role of the filibuster reaches its decisive moment, let’s remember that more is at stake than the rules and procedures of the Senate.

Resorting to half-truths and invective to advance a political objective — the establishment of a new 60-vote supermajority requirement for the confirmation of federal judges — is deeply unfair to those who have spent a lifetime building reputations for fairness and intellectual probity.

Take the case of two women now at the center of the filibuster controversy, Justices Priscilla Owen and Janice Rogers Brown. In describing Justices Owen and Brown, some of my Democratic colleagues and their allies have employed phrases like “far out of the mainstream,” “radical extremists,” “far-right partisans,” “hostile to civil rights” and “right-wing judicial activists.”

It’s been suggested that Justice Owen is too cozy with corporate interests at the expense of consumers. And one publication even called Justice Brown, an African-American who currently sits on the California Supreme Court, a “Jim Crow-era judge, in natural blackface.” These irresponsible charges, intended not to fairly describe an individual but to create a caricature of that individual in the public’s mind, will likely be leveled again as the issue of judicial nominations comes to a head on the Senate floor.

The record, of course, tells a different story. Justice Owen was twice elected to the Texas Supreme Court after enjoying a 17-year career as a litigator in a prominent Texas law firm. She earned the highest score on the December 1977 Texas bar exam and ranked at the top of her class at the Baylor University School of Law. Justice Owen has been endorsed by a bipartisan group of 15 past presidents of the Texas state bar. An advocate for providing pro bono legal services to the poor, she also received a unanimous “well-qualified” rating from the American Bar Association, the highest rating given by that organization. And in her last election to the Texas Court, Justice Owen earned a stunning 84 percent of the vote and was endorsed by every major newspaper in the Lone Star state.

I know of no “extremist” with such a distinguished record and broad public support.

For her part, Justice Brown is apparently guilty of the unpardonable sin of supporting private property rights, noting that the Constitution protects these rights through the Fifth Amendment’s takings clause. This stance so enrages the left that they have preposterously accused her of trying to undo the New Deal.

The citizens of California like what they see in Justice Brown. In one of the bluest of blue states, Justice Brown was elected to the state’s highest court with 76 percent of the vote, the highest vote percentage of all the justices on the ballot. During this election, Justice Brown was endorsed by numerous newspapers across California, including the liberal San Francisco Chronicle.

Justice Brown’s own colleagues on the bench appreciate her considerable legal skills. A bipartisan group of 12 judges who have worked closely with Justice Brown called her “extremely intelligent, keenly analytical and very hard working” and noted “she is a jurist who applies the law without favor, without bias, and with an even hand.” Not surprisingly, in 2002, she wrote more majority opinions than anyone else on the California Supreme Court. Justice Brown, too, has been given the seal of approval by the American Bar Association, earning a “qualified” rating from the organization’s review panel.

Justice Brown’s compelling personal story is one that all Americans can embrace. The daughter of sharecroppers, she was educated in segregated schools and worked her way through college and law school as a single mother. Justice Brown has devoted all but two years of her 26-year legal career to public service, becoming the first African-American to sit on California’s highest court.

By now, after years of standing by as their reputations were battered, Justices Owen and Brown are no doubt hardened veterans of the filibuster wars. So, too, is Judge Terrence Boyle, who has been nominated by President Bush for a seat on the 4th Circuit Court of Appeals. Judge Boyle, now a federal district court judge in North Carolina, was first nominated for this new appellate position some 14 years ago, but — unbelievably — he has yet to receive an up-or-down vote on the Senate floor.

While the Democrats cannot plausibly justify overturning more than 200 years of Senate tradition by filibustering the president’s judicial nominees, let’s also remember it is equally unacceptable to treat these nominees as political pinatas to further this aim.

Justices Owen and Brown, and Judge Boyle have earned their reputations as common-sense jurists who apply the law fairly and impartially. Attacking their good names will not diminish the simple fact that they are qualified to serve and merit an up-or-down vote on the Senate floor.

Sen. Elizabeth Dole, a Republican, is the senior senator from North Carolina.

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