Bush Appeals Court Choice Under Fire

California Supreme Court Justice Janice Rogers Brown, President Bush’s nominee to the U.S. Court of Appeals in the District of Columbia, ran into skeptical questioning Wednesday from Senate Democrats for speeches in which she referred to the New Deal era as “the triumph of our socialist revolution” and disputed whether the Bill of Rights applied to the states.

Three years ago, Brown described herself in another speech as a “true conservative” who believes that “where the government moves in, community retreats, civil society disintegrates.... The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.” Sen. Dianne Feinstein (D-Calif.) said she found Brown’s pronouncements troubling.

“Your speeches are extraordinarily intemperate for a sitting justice,” Feinstein told Brown. “Is that the real you?” She and the other Democrats on the Senate Judiciary Committee said they were wary of approving her nomination to the Washington-based appeals court, whose judges determine the fate of many laws and government regulations.

Answering in a soft-spoken voice, Brown, 54, said she tried to be provocative at times, especially when speaking to groups of young conservatives. But the views she expressed were hers, she added.

“I don’t have a speechwriter. I do these myself. And it speaks for itself,” she said of her past addresses.

The state justice also sought to assure liberal-leaning senators that her conservative views would not shape her rulings as a judge. “I’m a principled judge, and not an ideologue of any persuasion,” she said.

The hearing Wednesday featured a now-familiar partisan divide. Republicans, who hold a 10-9 majority on the committee, defended Brown’s nomination, while the Democrats took turns questioning her in a skeptical tone.

If her nomination follows the recent pattern, Brown is likely to win approval in the committee by a narrow margin, but her final confirmation remains in doubt. Democrats have used their power under the Senate’s filibuster rules to prevent final votes on three of Bush’s judicial nominees: Miguel Estrada, a Washington lawyer; Priscilla R. Owen, a Texas state justice, and Alabama Atty. Gen. William H. Pryor Jr.

In addition, Los Angeles Superior Court Judge Carolyn B. Kuhl is awaiting a final vote in the Senate. All four nominees won approval in the Judiciary Committee on 10-9 votes.

If Brown wins Senate confirmation, the vacancy on the state high court would give incoming Gov. Arnold Schwarzenegger a chance to name a new justice.

As a black conservative, Brown has been compared by her critics to Supreme Court Justice Clarence Thomas. Both grew up in poor families in the segregated South of the 1950s, and emerged in the 1980s as conservative critics of affirmative action and government benefit programs.

The U.S. Appeals Court for the District of Columbia Circuit has been a steppingstone to the Supreme Court. In 1990, President George H. W. Bush named Thomas to the appeals court, and a year later chose him for the Supreme Court to replace the retiring Justice Thurgood Marshall.

Like Thomas, Brown has won acclaim in conservative circles and notoriety among liberals for her provocative speeches.

In a 1999 speech at Pepperdine University titled “Beyond the Abyss: Restoring Religion on the Public Square,” Brown disputed the doctrine of separation of church and state and questioned whether the Bill of Rights, including the 1st Amendment, applied to the states.

This view harkens back to a lively dispute among constitutional scholars in the first half of the 20th century. The 1st Amendment begins with the phrase, “Congress shall make no law respecting an establishment of religion ... or abridging the freedom of speech or of the press....”

After the Civil War, the Reconstruction Congress wrote the 14th Amendment, which was intended to extend the Bill of Rights to the states. The amendment said that states may not “abridge the privileges or immunities of citizens of the United States” or deny them “life, liberty or property without due process of law.”

The amendment set off a century of debate in the Supreme Court on whether states were truly barred from infringing the basic guarantees of the Bill of Rights.

“The historical evidence supporting what the Supreme Court did here is pretty sketchy,” Brown said in her Pepperdine speech. “The argument on the other side is pretty overwhelming” that the 14th Amendment failed to apply the Bill of Rights to the states.

Brown said Wednesday there was historical evidence pointing in both directions. But she also said she accepted the Supreme Court’s view that the Bill of Rights protects all Americans today.

“What the Supreme Court said is what counts. Speeches are an opportunity to think out loud,” she said

Still, Brown’s critics have called her view radical, out of step with decades of law.

“It is unfathomable to me that in 2003 anyone would seriously argue that Alabama, for example, could declare an official religion,” said Barry Lynn, executive director of Americans United for Separation of Church and State.

Brown’s Democratic critics in the Senate said she might be a particularly poor fit for the Washington, D.C., federal appeals court. The court decides cases that test federal regulations and laws in such areas as the environment, workers’ rights and antitrust enforcement

“How in the world can anyone have confidence in you as a judge when you have this despicable attitude toward government?” asked Sen. Richard Durbin (D-Ill.).

Brown said her views were being misread. “I don’t hate government. I’ve been a government servant for 99% of my career,” she said. “I know there are things that can only be done by government.”

Committee Chairman Sen. Orrin G. Hatch (R-Utah) said Brown’s critics were focusing on the wrong aspects of her public life. “There is a real difference between giving speeches and doing what is right on the bench. You have followed the law, and that’s the important thing,” he said to Brown.

Hatch also said Estrada had been “treated shamefully” by the Democrats. Estrada withdrew his nomination to the same U.S. appeals court after being blocked for final confirmation.

In response, Democrats said they had approved 165 of Bush’s judges, and blocked only three.

“President Clinton would have been glad to trade places with President Bush” in this area, said Durbin. Sixty-one of Clinton’s judicial nominees were blocked by Republicans.