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Senate set to approve judicial nominee Brown
McClatchy Newspapers


June 08, 2005

Washington - California Supreme Court Justice Janice Rogers Brown, whose provocative criticisms of big government have made her a target for Democrats, is expected to be confirmed Wednesday for a lifetime federal judgeship, the second in a series of President Bush's ideologically conservative nominees to benefit from a bipartisan deal that lifted Senate filibusters against them.

Nearly two years after the president nominated Brown, 56, to a seat on the U.S. Court of Appeals for the District of Columbia, senators voted 65-32 on Tuesday to wrap up debate and move to a vote. Brown is expected to win a majority of support from the Republican-controlled Senate in a full confirmation vote scheduled for Wednesday, despite critics' efforts to sway a handful of Republicans who in the past expressed concerns about whether Brown's personal views play too much of a role in how she interprets the law.

California Sens. Dianne Feinstein and Barbara Boxer, both Democrats, have previously spoken against Brown's record and said they could not support her confirmation.

Several senators described the D.C. court as second in importance only to the Supreme Court in the nation because of its jurisdiction over federal regulatory agencies.

Republican leaders on Tuesday praised Brown as an independent-minded black woman who rose from humble roots as the daughter of Alabama sharecroppers. They cited as evidence of her qualifications Brown's having been tapped to write several of the California high court's important majority opinions, and the support of her federal nomination by several colleagues.

"No party has the monopoly on the promotion of diversity," said Sen. Orrin Hatch, R-Utah. "Apparently some believe only liberal minority nominees are diverse enough."

Democrats acknowledged Brown's compelling life story, but they said it should not obscure her opposition by a variety of prominent black leaders, or a record that has shown an aversion to affirmative action and government social welfare programs and a preference for businesses' rights against the claims of individuals and property owners' rights against government regulation.

"It isn't enjoyable for me to go against someone who's a woman, whose life story is remarkable," Boxer said earlier this week. "It isn't easy for me to take a stand against a minority woman. But we need to know what we're doing and this president has to get a message."

Brown's critics cited as examples of judicial activism her biting dissents from the majority in a number of cases in California, as well as speeches in which she has compared New Deal programs to socialism and criticized senior citizens who "cannibalize" their grandchildren by demanding social services at a level that could break the bank for future generations.

Representatives of several liberal-leaning interest groups opposed her nomination, including the Sierra Club, the AFL-CIO and civil rights groups. They predicted Brown would tilt the D.C. court, which leans conservative, further to the right, and undercut environmental regulations, labor laws and special protections for minorities and senior citizens.

Her supporters accused critics of being selective. They noted one of her dissents, in a 2002 case in which the majority upheld the methamphetamine conviction of an African American bicyclist whom police stopped for riding the wrong way on a one-way street.

In her dissent, Brown wrote that racial profiling unfairly targets minorities. "Everyone who has not spent the last 20 years sealed in an ivory tower knows the problem is real," the dissent said. "Judges go along with questionable police conduct, proclaiming that their hands are tied. If our hands really are tied, it behooves us to gnaw through the ropes."

Several California scholars and lawyers who have followed her rulings also downplayed the notion she would set to work dismantling federal protections.

"You could say virtually everything that court (the D.C. circuit) looks into is governmental action and, therefore, if you take her (remarks about government programs) seriously, she might disparage all of it," said Stephen Barnett, a retired University of California, Berkeley, law professor and authority on the California Supreme Court, who early on supported Brown only to retract his endorsement citing revelations about her speeches.

"I wouldn't expect that," he said. "I think she's too savvy for that."

Brown's confirmation comes about two weeks after seven Republicans and seven Democrats teamed up to avert a vote on the "nuclear option," a move by Republican leadership that would have abolished filibusters of judicial nominees. More than 200 of the president's nominees got up or down votes, but Democrats had used the threat of endless debate to block votes on 10 of them, including Brown. Republicans, in turn, threatened to change Senate rules to cut off filibusters with a party-line vote.

In exchange for preserving their right to filibuster in extreme cases, Democrats agreed to give up such debates on three specific Bush nominees to federal judgeships: Brown, Priscilla Owen of Texas and William Pryor, former Alabama attorney general. Pryor is expected to be brought up for confirmation later this week, as are two other nominees.

After Tuesday's vote to end debate on Brown, Sen. Kay Bailey Hutchison, R-Texas, said, "I don't think we can discount the importance of up-or-down votes on the president's nominees for the federal bench. This does affect the business climate, the economy and the quality of life in our country."

Claire Cooper contributed to the story from Sacramento, Calif.


Distributed by Scripps Howard News Service.

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