- The Washington Times - Saturday, May 21, 2005

Democrats have attacked California Supreme Court Justice Janice Rogers Brown — the second filibustered judicial nominee being debated in the Senate — for several of her court rulings but also for speeches in which she criticized big government and defended religion.

President Bush nominated Justice Brown to the U.S. Court of Appeals, D.C. Circuit, nearly two years ago and the criticisms of her today mirror those leveled against her during her October 2003 confirmation hearing. But even her harshest critics do not deny that Justice Brown’s accomplishments have been significant.

Born to sharecroppers in Greenville, Ala., under oppressive Jim Crow laws, Justice Brown told senators that her family’s motto growing up was: “Don’t snivel.” As a single mother, she worked her way through law school and — after holding a variety of legal positions in California — was appointed to the state’s highest court.

In 1998, the last time her name appeared on the California ballot, she won 76 percent of the vote — higher than any other justice whose name was on the ballot that year.

Senate Democrats charge that Justice Brown is so conservative that she is too far outside the mainstream to serve on the second-highest court in the land. Several have accused Justice Brown, who is black, of being against civil rights and in favor of returning the country to a century dominated by the slavery of blacks.

“Janice Rogers Brown’s record shows a deep hostility to civil rights, to workers’ rights, to consumer protection, to a wide variety of government actions, the very issues that dominate the D.C. court,” Sen. Edward M. Kennedy, Massachusetts Democrat, said on the floor last week.

Minority Leader Harry Reid said, “She wants to take American back to the 19th century and undo the New Deal, which includes Social Security and vital protections for working Americans — like the minimum wage.”

Mr. Reid’s assertion, which Justice Brown has said is flatly untrue, is based on a speech in which she said the New Deal marked “the triumph of our own socialist revolution.”

During her October 2003 hearing, Justice Brown said most of her speeches were delivered to younger audiences such as law students in academic environments. “In making a speech to that kind of audience, I’m really trying to stir the pot a little bit, to get people to think, to challenge them a little bit and so that’s what that speech is designed to do,” she said. “But I do recognize the difference in the role between speaking and being a judge.”

An area of possibly even greater alarm for Democrats is Justice Brown’s suspicion of enlarged government, which supporters say is understandable for someone who grew up under government-sanctioned racism.

“I’m very concerned about your statements that you’ve made in your speeches which are highly critical of the role of government,” Mr. Kennedy said during her confirmation hearing, noting that the D.C. Circuit hears many cases dealing with the federal government. “These issues have real implications for real people, and they are government actions that are out there to protect people.”

“I don’t hate government,” she replied. “I am part of government. What I am talking about there is really where the government takes over the roles that we used to do as neighbors and as communities and as churches. I think it’s important for us to preserve civil society, but I am not saying there is no role for government.”

Mr. Kennedy also expressed concern about a case Justice Brown handled involving racial slurs in the workplace and scolded her for not being more concerned about such behavior. Justice Brown wrote that the First Amendment guarantees free speech and prohibits the federal government from ordering a supervisor not to use racial slurs.

“How does that possibly advance the cause of justice and fulfill what we were trying to do to deal with this kind of verbal harassment in the civil rights laws?” Mr. Kennedy asked.

“Well, Senator,” Justice Brown replied, “Let me say that I absolutely agree with you that no one should be subjected to this kind of harassment, to verbal slurs. … All that I was saying in that case is that the damages remedy is a deterrent. I think that damages in this particular case would be totally effective because you’re dealing with this corporation that is not going to want to go through this continually.”

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