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Thursday, June 09, 2005

Janice Rogers Brown: When things come easy

Posted by: Hammer / 2:51 PM

Meet Janice Rogers Brown, your newest judge on the D.C. Circuit:
"In the heyday of liberal democracy, all roads lead to slavery," she has warned in speeches. Society and the courts have turned away from the founders' emphasis on personal responsibility, she has argued, toward a culture of government regulation and dependency that threatens fundamental freedoms.

"We no longer find slavery abhorrent," she told the conservative Federalist Society a few years ago. "We embrace it." She explained in another speech, "If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy - a license to steal, a warrant for oppression."

To her critics, such remarks are evidence of extremism. This week, some Senate Democrats have even singled her out as the most objectionable of President Bush's more than 200 judicial nominees, citing her criticism of affirmative action and abortion rights but most of all her sweeping denunciations of New Deal legal precedents that enabled many federal regulations and social programs - developments she has called "the triumph of our socialist revolution."

Her friends and supporters say her views of slavery underpin her judicial philosophy. It was her study of that history, they say, combined with her evangelical Christian faith and her self-propelled rise from poverty that led her to abandon the liberal views she learned from her family.

"We discuss things like, 'How did slavery happen?' " said her friend and mentor Steve Merksamer, a lawyer in Sacramento, Calif. "It comes down to the fact that she believes, as I do, that some things are, in fact, right and some things are, in fact, wrong. Segregation - even though the courts had sustained it for a hundred years - was morally indefensible and legally indefensible and yet it was the law of the land," he said. "She brings that philosophy to her legal work."

On the California Supreme Court, her opinions have reflected the philosophy and language of her speeches. In an opinion involving fees charged to San Francisco hotel owners, for example, she proclaimed that "private property, already an endangered species in California, is now entirely extinct in San Francisco." In an affirmative action case, she criticized "entitlement programs based on group representation." And in dissenting in a case involving Nike's labor practices, she compared the United States Supreme Court to "a wizard trained at Hogwarts" conjuring up distinctions about commercial speech that she said restricted businesses' freedoms.

Her father was a World War 2 vet -- I assume Judge Rogers Brown opposes the GI Bill, in all its forms, as just another form of liberal slavery. She went to a state college while working at the department of corrections -- huh? She took taxpayer money to get an education? That's not very Ayn Randian. Plus, she supported herself with a government job.

She got her law degree at UCLA, another public school supported by tax dollars, then went to work at the state legislature and the attorney general's office. She made her name by defending the state against charges that it underpaid women.

In fact, Rogers Brown has spent her entire life ensconced in the trappings of liberalism that she now derides. From birth onwards she accepted the benefits of liberalism by attending public schools and holding government jobs.

Seems like a true free marketer would, eventually, find a private sector job. But you don't have to practice what you preach to the Republican choir.

Here's my guess. Judge Rogers Brown saw the civil rights movement as an episode of Happy Days:

Her family was involved in the voting rights movement in Alabama and became liberal Democrats. She was inspired to become a lawyer by the career of Fred D. Gray, an Alabama civil rights lawyer who represented Rosa Parks and Martin Luther King Jr. Justice Brown has said she initially shared her family's views, but over the years became more conservative in her thinking.
My guess is -- and it's just a guess -- that Rogers Brown saw the civil rights movement as easy. She wasn't inspired by Medgar Evers. She was inspired by Fred Gray. My guess is that Rogers Brown was isolated from the blood, the sweat, the tears, the toil, and the terror of the civil rights movement. My guess is that it seemed easy to her. Her personal successes came easily, as well. She moved quickly to the top of her profession. My guess is that she has never considered that for every promotion she earned, someone was passed over.

I believe that bad things often happen to good people. That it's the highest calling of a society to protect the weak and to aid the afflicted. I've never felt weak nor afflicted, but I've known many people who struggle to hold jobs, keep apartments, and finish educations. Rogers Brown thinks she's enslaved by programs that help the mentally ill and the physically handicapped. I think we're enriched by the effort.

Elephants -- the strongest land mammals in the world -- form circles around calves as they are born. To Rogers Brown, that's slavery: the elephants are forced by society to protect someone else's calves against their will. To me, it's doing what's right by doing what you can to help the weak grow stronger.


Do you know why all the judges up for appointment to the court of appeals hold government jobs? It is because lawyers in private practice can't wait 6 years to get confirmed. What client would hire a lawyer who may be moving to bench at some unspecified time. The answer is very few. If you want well qualified practice practice lawyers to be considered, then there needs to be up or down votes-- not the endless filibustering.

By Anonymous Anonymous, at 10:22 PM  

I've got no problem with anyone having a government job, except for those who complain about the tyranny of government and have spent their entire lives enjoying the benefits government provides.
That said, 95% of Bush's nominees were approved very quickly. It's only the nut job 10 who were delayed.

By Blogger Hammer, at 7:41 AM  

BTW, good to hear from you, Sean.

By Blogger Hammer, at 7:45 AM  

There's also this: "Voters in Nevada elected a former stripper to be
a judge." So Brown did have some options... (From Harper's)

By Blogger Hammer, at 8:04 AM  

I don't understand the proposition that if you hold a government job you can't be a strict constructionist or err on the side of the private citizen vs. the government. Maybe I'm missing something, but isn't the bill of rights all about protecting the individual from the government? I know many lawyers who are life time employees of the government and fight governmental excess all the time. The State and Federal Public Defender's offices are great examples of this.

I think what you may be talking about is judicial activism v. judicial restraint. Courts have become super legislatures and that is disturbing. It is easy and quite tempting to usurp the role of the legislature and impose your own personal views of what the law should be. It is difficult to recognize and appreciate the role founding fathers gave you in the federal system and reign in your own power by interpreting laws as written instead of inventing them through "emanations" and "prenumbras". What is a "prenumbra" anyway?

When Luke asked Yoda whether the dark side was more powerful. Yoda said no, it is easier, faster, more seductive. Activist Judges are modern day Sith Lords.

By Anonymous Anonymous, at 10:15 PM  

Brown is conservative, but that doesn't mean she believes in judicial restraint. I think her record demonstrates the opposite: she is a zealous, activist judge who claims to prefer the Lochner era: where freedom of contract bars government regulation of labor. Child labor? Okay. 80 hour work weeks mining asbestos? Okay. If you can find somone desperate enough to enrich uranium in boxer shorts and a baseball cap, that's fine, too.

Brown's opinion is that government has no business doing much of anything. Considering Brown has spent her entire life benefiting the business government engages in, that makes her a hypocrite. Everything the government does is bad and and wrong, except what personally benefits her.

By Blogger Hammer, at 7:26 AM  

I highly doubt we will ever return to the Lochner era. The commerce clause and "reverse" commerce clause (another activist invention) have been stretched beyond all recognition. As long as Congress makes findings that interstate commerce is somehow effected, the Court gives them a pass.

I believe we need someone super reactionary appointed to the Supreme Court. That way when he or she gets to the bench and tastes the power of the darkside there will be some resistance and he or she will slide only slightly right of center. Souter, Kennedy and O'Connor were all Republican appointees and now they are all leftists on social issues. The courts are the last bastion of liberalism in America. I don't think the public is going to put up with it for long.

By Anonymous Anonymous, at 9:34 PM  

As opposed to the "right to contract", which appears in each of the first 8 amendments, right?

Art 1 Section 10 says "No State shall ... pass any ... Law impairing the Obligation of Contracts", which conservative judicial activists turned into the notion that states could not interfere with any contracts. As you and I both know, every sale of a pack of gum is a contract. Every paycheck, every home purchase, every bet at a race track. According to conservative judicial activists, the state had no authority to regulate anything.

Republicans clearly have a winning formula for now, but sooner or later the coalition will fall apart.

By Blogger Hammer, at 7:52 AM  

is anyone as tired as i am of racist attacks on rogers brown?

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