Brown and the Broader Battles over the Judiciary

It is likely that right-wing senators and activists – Orrin Hatch, Jeff Sessions, Trent Lott, C. Boyden Gray, Jay Sekulow, and others – will continue to press false and shameful charges that opponents of some Bush administration judicial nominees have created an anti-Catholic and anti-religious litmus test based on nominees’ personal beliefs about abortion.

The outrageous charges of religious bigotry have been rightly denounced by many senators and editorial writers. But it is also necessary to challenge the oft-repeated assertion that opposition to Bush nominees is based on a single-issue litmus test of abortion rights. This memo, and the more extensive People For the American Way and NAACP report opposing Brown’s confirmation, document her extremist judicial philosophy on areas from civil rights to states’ rights, her pattern of ignoring precedent to try to remake the law according to her personal political views, and her often contemptuous attitude toward fellow justices.

The disturbing record of Janice Rogers Brown is in no way unique to her. She embraces, and in some ways goes even beyond, the legal philosophy of Robert Bork, Antonin Scalia, Clarence Thomas, and John Ashcroft. Her commitment to using her power as a judge to advance right-wing goals puts her in company with a number of Bush administration judicial nominees.

A federal judiciary dominated by Brown’s ideology would be disastrous. A Supreme Court with a majority of judges embracing that ideology – one or two appointments away from reality – would reverse more than 100 precedents and roll back decades of social justice progress in civil rights, religious liberty, environmental protection, worker and consumer safety and health, privacy and reproductive rights, and much more.

The Bush administration’s defiant insistence on nominating hard-right ideologues to powerful appeals court positions reflects the president’s unwillingness to engage in bipartisan consultation and compromise and his determination to impose a right-wing ideology on the appeals courts. In Brown’s case, her selection from 3000 miles away also conflicts with the nonpartisan policy urged by D.C. Bar leaders, and followed for the last 10 years, of seeking to select D.C.-area lawyers familiar with the D.C. Circuit for positions on that court.

There will undoubtedly be a number of contentious judicial nomination battles this fall and winter. They should be debated on the qualifications and judicial philosophy of the nominees, and on the nominees’ commitment to preserving Americans’ rights, liberties, and legal protections. There is a great deal at stake with the future of the judiciary and the issues should be clearly drawn for the American people. Irresponsible charges of religious bigotry, designed to inflame rather than inform, should play no role in this debate. President Bush and other Republican Party leaders should repudiate the religious McCarthyism being waged by the administration’s political allies.

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