President Bush has nominated California Supreme Court Justice Janice Rogers Brown to the Court of Appeals for the D.C. Circuit, and is once again bashing Democratic Senators for blocking his nominees. Is he right?
Let's see, as the
Washington Post describes:
Justice Brown is one of the most unapologetically ideological nominees of either party in many years. In speeches, she has openly embraced the Supreme Court's so-called "Lochner" era, during which the justices struck down numerous worker protection laws on grounds that they violated the supposed right of free contract. Across the spectrum of constitutional law scholarship, there are few points of greater consensus than that this period is a blot on the Supreme Court's history. The very word "Lochner" -- named for the 1905 case that forged the doctrine -- has come to be used as a pejorative shorthand for judicial usurpation of legislative authority. Yet Justice Brown has insisted that without such usurpation, "a democracy is inevitably transformed into a Kleptocracy -- a license to steal, a warrant for oppression." The title of this entry is an homage (sic) to Justice Peckham, who authored the Supreme Court's opinion in Lochner v. New York, 198 U.S. 45 (1905), striking down a New York law that prohibited bakers from working more than 60 hours a week. He claimed that this interfered with the rights of workers and employers to be free of governmental interference in their making of contracts.
But that's all well and good, you see, because Justice Brown doesn't really mean what she says in her speeches.
Her speeches, she said, are efforts to be provocative; senators should look at her judicial work to see what kind of federal judge she would be. This might be a reasonable answer, except that her speeches are quite clear in their meaning -- and her judicial work reflects exactly the kind of property-rights adventurism you would expect from their author. Her colleagues on California's high court certainly understand where she's coming from. In one case they rebuked her for seeking to impose her "personal theory of political economy on the people of a democratic state." Or does she? This is another sick political ploy by the President and his colleagues to further divide our country into haves and have-nots. Of course, he can stand up and claim that the Senate is not performing its duty by not affording Justice Brown a floor vote, as they most certainly should and probably will do. What he fails to recognize is that
the Senate is actually performing their duty by refusing to confirm judges like Justice Brown.
[The President] shall have power ... and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for.The Senate would be shirking its duty if it didn't render its advice: Janice Rogers Brown is not fit to be a federal appellate judge.