Brown will not be confirmed this time around. Watch for her reappearance if the Republicans pick up more Senate seats in 04.
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Bush judicial nominee slammed
Senate Democrats portray her as a conservative activist.
By David Whitney -- Bee Washington Bureau - (Published October 23, 2003)
WASHINGTON -- California Supreme Court Justice Janice Rogers Brown, President Bush's controversial nominee for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, ran into a firestorm of criticism from Democrats during a four-hour Senate Judiciary Committee confirmation hearing Wednesday.
The 54-year-old daughter of an Alabama sharecropper was grilled extensively about positions she had taken in speeches and in court opinions that Democrats said showed her to be a conservative activist outside the mainstream of public and judicial thinking.
Among her critics was California Sen. Dianne Feinstein, who openly questioned whether the African American jurist from the Sacramento area could be trusted to set aside her personal opinions and follow legal precedents if confirmed to the appeals court seat.
The D.C. appellate court is widely viewed as second in importance only to the U.S. Supreme Court because of its exclusive role in many cases involving the federal government.
Brown has been an outspoken opponent of affirmative action and a strong critic of the growth of government. In her tenure on the California Supreme Court, she wrote the principal opinion enforcing Proposition 209, the referendum prohibiting affirmative action programs. Although her colleagues agreed with her, some refused to join her opinion in the 2000 case, saying she had gone too far and had used needlessly scathing language in an effort to extend the proposition's reach.
Republicans, led by committee Chairman Orrin Hatch of Utah, were generally enthusiastic about Brown, whom many consider to be Bush's leading contender for the U.S. Supreme Court when an opening occurs.
"How anyone would not think you are a superior nominee is beyond me," Hatch told Brown at the close of the hearing. "I'm going to do all that I can do to see that you are confirmed."
With more than a couple dozen organizations, ranging from the National Association for the Advancement of Colored People to the People for the American Way, lining up to oppose her nomination, however, Brown's confirmation has become the newest judicial battleground.
In September, Miguel Estrada asked Bush to withdraw his nomination to the same appeals court because of solid Democratic opposition that made it impossible for Republican leaders to move his confirmation to a Senate vote.
Brown showed the stamina Wednesday to endure such a confirmation battle. While she hesitated and perhaps even stumbled in a few of the exchanges with her sharpest critics, she remained even-tempered and unapologetic throughout, and ended the hearing with an expression of gratitude for how courteously she had been treated.
Hatch said that while Brown has taken positions that have angered liberals, she can't be the conservative firebrand that they paint her to be when she got 76 percent of the vote in the 1998 election, higher than three other California Supreme Court justices on the ballot that year.
"She is hardly out of the mainstream," he said.
But Sen. Dick Durbin, D-Ill., dubbed Brown a "frequent dissenter in the rightward direction," and he ticked off cases in which she had stood alone in opposing the right to sue for age discrimination, restrictions on selling cigarettes to minors, bans on the sales of guns on fairgrounds and housing assistance for displaced poor, elderly and disabled renters in San Francisco.
"Given your hostility to the federal government and its role in our lives, your nomination to the D.C. Circuit is ironic," Durbin said. "I am skeptical about this nomination."
In her questioning, Feinstein zeroed in on a speech Brown delivered three years ago to the Federalist Society at the University of Chicago Law School that the senator said was disturbing because of its anti-government tone.
In that speech, Brown said that "where government moves in, community retreats, civil society disintegrates, and our ability to control our destiny atrophies. The result is: families under siege, war in the streets, unapologetic expropriation of property, the precipitous decline of the rule of law, the rapid rise of corruption, the loss of civility and the triumph of deceit."
"Do you really believe that?" Feinstein asked.
"I was referring there to the unintended consequences of government," Brown said.
But Feinstein, who met privately with Brown on Tuesday, called her words "extraordinary for an appellate court justice."
"How can I depend on you to disassociate yourself from those views and follow the law?" Feinstein said.
Brown said she would keep her personal opinions out of her future work. "I absolutely understand the difference in roles in being a speaker and being a judge," she told the committee.
When questioned about the speeches, Brown attempted to back away from them without renouncing their pronouncements. Instead, she said they were intended in part to be provocative for her audiences, which in the case of the Federalist Society was only about 45 people.
She said she was "simply stirring the pot a little bit, getting people to think, to challenge them."
And when Sen. Edward M. Kennedy, D-Mass., attacked her for her anti-government tone in the speeches, Brown uttered her strongest defense.
"I don't hate the government," she said. "I am part of the government. I've been a government servant 99 percent of my career. I know there are things that can't get done unless government does them."
The committee did not say when it would vote on Brown's nomination, but she is likely to advance past the GOP-controlled committee to the Senate floor. Democrats already are filibustering three of Bush's conservative nominations there. Democrats on the committee pointed out that 165 of Bush's judicial nominees have been confirmed.
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