Rare Judicial Honesty

As the War over Judges takes center stage in the Senate today, there's been so much hypocrisy on both sides that it is refreshing to see a candid assessment of one of the Bush nominees that actually looks at the person's record and thoughts rather than either using her as a proxy for battling George W. Bush -- or as a way for conservatives to play their own version of the victim card.

It's not a complete surprise that this assessment comes from someonee who has been my favorite leftie for many years -- Nat Hentoff of the Village Voice.

Of course, I don't always agree with him, but unlike ideologues (on the Right OR the Left) he stays consistent.

He takes a dogmatic, strict-construction approach on civil liberties -- not surprising at the Voice. But that world-view also makes him adamantly pro-life -- which makes him quite the anomaly at the Voice).

During the Terri Schiavo case, he was one of the strongest critics of Michael Schiavo and strongly supported the effort to keep her alive. I didn't agree with that position, but it is indicative of how Hentoff is willing to place principle above politics.

Anyway, his latest column gives a strong defense of Judge Janice Rogers Brown against The New York Times characterization of her as being "extreme. After admitting that he has serious problems with Brown's views on the economic rights of corporations, Hentoff shows the other side of the story:

Here are some of Justice Brown's rulings and dissents as a justice of the California Supreme Court. None of what follows has been cited by her attackers, including the autocratic editorial board of The New York Times.

In People v. McKay (2002), Janice Rogers Brown was the only member of that court to denounce racist standards by which some police engage in stop-and-search operations:

"There is an undeniable correlation between law enforcement stop-and-search practices and the racial characteristics of the driver. . . . The practice is so prevalent, it has a name: 'Driving While Black.' "

She quoted a U.S. Supreme Court opinion by William O. Douglas
(Papachristou v. City of Jacksonville, 1972): "If we are committed to a rule of law that applies equally to 'minorities as well as majorities, to the poor as well as the rich,' we cannot countenance standards that permit and encourage discriminatory enforcement."

Justice Brown added that while racial profiling is "more subtle, more diffuse, and less visible" than racial segregation, "it is only a difference in degree. If harm is still being done to people because they are black, or brown, or poor, the oppression is not lessened by the absence of television cameras."
How did the Times miss that one?

In the case In re Visciotti (1996), Justice Brown was in dissent on the death sentence of John Visciotti, who had been convicted of murder, attempted murder, and armed robbery. She said the sentence should be set aside because of the clear incompetence of Visciotti's lawyer. (This makes her an "extreme right-wing ideologue"?)

In another case, In re Brown (1998), this purported enemy of civil rights and civil liberties went after the prosecutor in a capital case and reversed the death sentence of John George Brown because the prosecutor withheld evidence that could have been exculpatory.

In People v. Woods (1999), Justice Brown sharply disagreed when her colleagues approved a police search of a suspected drug dealer's home because, as the cops said, his roommate had consented to warrantless searches as a condition of probation. Said Janice Rogers Brown -- The New York Times' extreme, right-wing poster woman -- "By their decision today, a majority of the court set the history of personal liberties back more than 200 years." (Emphasis added.)

Of course, these are not things the Times chooses to point out.

Sadly, it's also unfortunate that this information is not promoted more by Republican and conservative supporters of Justice Brown. As noted here, though, they seem more interested in reminding everyone of her 'umble, 'umble beginnings than of what she actully, you know, thinks.

A notable exception to this trend though is my erstwhile colleague over at National Review, Ramesh Ponnuru. He has read Brown's writings and her speeches -- and finds her troubling. In short, she may be a judicial activist who ascribes to the view that "judges had to apply a law higher than the Constitution."

Now, given that Justice Anthony Kennedy has suggested that it is legitimate to turn to international law in assessing a case before the Supreme Court (such as the juvenile death penalty), having a conservative who believes in the same underlying principle (seek extra-constitutional support for a legal argument)

Ramesh is responding to Peter Kirsanow, a conservative labor lawyer who sits on the U.S. Commission on Civil Rights. The two engage in something of a colloquoy over at National Review Online over the implications of Brown's views.

And, just as in the Hentoff article, it is refreshing to actually have a discussion over a nominee's philosophical principles and viewpoints and not just demographic incidents. Alas, the second paragraph of the Kirsanow article that initiates the discussion begins, "The black sharecropper's daughter, born in segregated Alabama, has been excoriated as a closet member of the Ku Klux Klan..." (Any chance Loretta Lynn could set the phrase "She was only a sharecropper's daughter" to music?)

One can hope that the debate on the floor of the Senate might be more in keeping with the higher intellectual angels represented in arguments put forth by Nat Hentoff and Ramesh Ponnuru.

Don't bet on it.