ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

Within the next few hours, the U.S. Senate will vote up or down on California Supreme Court Justice Janice Rogers Brown. This should be a very easy call, especially with the strong endorsement of people like Senator Specter: "If one takes a close reading as to what Justice Brown has had to say, she is worthy of confirmation by this Senate."

The most vigorous argument against her is that she would return the United States to the days of the Supreme Court's Lochner decision. Aside from the fact that circuit court judges have no such power, Justice Brown also has no such intention. Here's what she wrote in SANTA MONICA BEACH v. SUPERIOR COURT OF LOS ANGELES COUNTY:

The Lochner court was justly criticized for using the due process clause "as though it provided a blank check to alter the meaning of the Constitution as written." (Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, 675.) The "revolution of 1937" ended the era of economic substantive due process but it did not dampen the court's penchant for rewriting the Constitution. Although the court left the protection of property interests largely to the mercy of legislatures, it continued to apply substantive due process to the protection of civil liberties. "As several of the Justices have noted in dissent, there is only a verbal difference between the 'fundamental rights' branch of the compelling governmental interest test and the now discredited substantive due process doctrine of such cases as Lochner. . . . Both of them leave the Court entirely at large, with full freedom to enact its own natural law conceptions. The only difference is in the type of interests that are protected . . . ." (Lusky, By What Right? (1975) p. 266, fns. omitted.)

Justice Brown was exactly right. The continuing abuse of the Due Process Clause is the single greatest tragedy of American jurisprudence. (I've written about that subject myself, here.) Judges like Janice Rogers Brown may yet end that tragedy.

It's true that Justice Brown believes the Takings Clause of the Constitution packs a bigger punch than many other judges believe, but her views arise from honest conviction about what the Framers meant. This is a healthy debate, and there's no reason for the Senate to stifle it.

Katie Harbath tells me that Sen. Boxer is claiming that "anyone who knows anything about California politics knows that it is very rare that judges are made into an election issue. We usually approve our judges." In other words, Sen. Boxer wants everyone to ignore that Justice Brown, with 76 percent of the vote, received the highest vote percentage of all justices on the ballot the year of her retention election. Sen. Boxer would also have us ignore that, in November 1986, California Chief Justice Rose Bird and two other liberal members of the California Supreme Court were voted out of office in large part for their activism in reversing death penalty cases. In other words, Senator Boxer knows very well that 76 percent of California did not vote to retain Justice Brown by accident. The people of California know that even Justice Brown's most controversial opinions have been well within the mainstream of American thought and culture.