California Supreme Court Justice Janice Rogers Brown, President Bush's nominee to serve on the U.S. Court of Appeals for the District of Columbia, is the target of some of the most inflammatory opposition since Clarence Thomas took his seat before the Senate Judiciary Committee more than a decade ago. Don't expect this strafing to end with the committee's vote on Brown (along party lines, most likely), which might happen this week. As things stand now, she could be the latest Bush nominee to face a filibuster when her nomination reaches the Senate floor.
As with the Thomas nomination, both supporters and detractors are playing the race card. Opposition groups say Brown isn't "really" black because she has been critical of government policies of redistributing wealth and giving preferences to racial minorities in public contracting. Supporters, emphasizing her background as the daughter of an Alabama sharecropper in the segregated South, accuse her foes of racism against black conservatives.
Both sides should focus more on Justice Brown's actual record and ideas. They will discover a jurist of insight and integrity - and learn valuable lessons about the judiciary's proper role in a government system that is supposed to be dedicated to individual rights.
According to conservative boilerplate, a judge's task is to apply, narrowly, the written law and resist temptation to become a policymaker. Brown's understanding is more expansive. Although she regularly insists that courts are not, indeed, to behave like legislatures, she rejects any notion of the judge as a robotic strict constructionist. In her jurisprudence, courts should function, first and last, as defenders of freedom.
She follows the rule of law in spite of her comments. Judges have a right to an opinion and the right to express it as long as it remains just that an opinion..
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