Ben Margot  /  AP file
California Supreme Court Justice Janice Rogers Brown was approved Wednesday for a federal appeals court judgeship.
By Tom Curry National affairs writer
updated 6/8/2005 6:34:50 PM ET 2005-06-08T22:34:50

WASHINGTON — Two years after President Bush first nominated her, the Senate voted 56-43 Wednesday to confirm Janice Rogers Brown as a judge on the court of appeals for the District of Columbia Circuit.

One Democrat — Sen. Ben Nelson of Nebraska — joined Republicans in voting for confirmation.

Following Brown’s confirmation, the Senate voted 67-32 to end a filibuster of former Alabama Attorney General William Pryor — the last of the three nominees whom seven Democrats agreed to clear in exchange for Republicans not banning the stalling tactic.

A confirmation vote is set for Pryor on Thursday at 4 p.m.

Standing just off the Senate floor, Nan Aron, president of the Alliance for Justice, a coalition of liberal, women's rights and environmental groups, called Brown's confirmation "the best evidence of the need for a filibuster. The fact that there are no surprises says it all: The Republicans vote in lockstep and that is the best argument for maintaining the ability of the Senate to filibuster."

Since it takes 60 votes to overcome a filibuster, 41 senators have the ability to block a nominee with majority support from ever getting a vote on confirmation.  

Despite the filibusters that slowed his nominees in 2003 and 2004, gradually, Bush is nudging the federal appeals courts in a more conservative direction.

By the end of his eight years in office President Clinton had nominated and seen confirmed 66 appeals court appointees.

At this point, according to the Federal Judicial Center, Bush has seen 38 of his appeals court nominees confirmed, although one Bush appointee, Michael Chertoff, has left the federal bench to become secretary of homeland security.

There are 15 vacancies on the federal appeals courts.

A vote on Brown's nomination had been blocked on Nov. 14, 2003, because her supporters could not get the 60 votes needed under Senate rules to end prolonged debate, known as the filibuster.

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On that vote, 53 supported Brown and 43 opposed her. Two Democrats, Nelson and Sen. Zell Miller of Georgia, voted with 51 Republicans to end debate and move to a vote.

Agreement on unblocking nominations
Under a bipartisan memorandum of understanding signed May 23, seven Democrats agreed to not support filibusters of Brown and two other Bush nominees, Priscilla Owen, who took her oath of office Monday as a federal appeals court judge for the Fifth Circuit, and Pryor.

After Democrats used filibuster threats in 2003 and 2004 to block a vote on Pryor's nomination, Bush gave him a recess appointment to the appeals court on Feb. 20, 2004, saying, "If Attorney General Pryor were given a vote on the floor of the Senate, he would be confirmed."

Once Pryor is either confirmed or voted down, the filibuster of judicial nominees again becomes a live option, if any of the seven Democrats who signed the May 23 accord decides that a Bush judicial nomination has created “extraordinary circumstances.”

On Tuesday, one Republican, Sen. George Allen of Virginia, urged a vote on one of the Bush judicial nominees not covered by the "no-filibuster" pledge in the May 23 deal: Idaho lawyer and former Interior Department official William Myers.

Bush has nominated Myers to serve on the Ninth Circuit Court of Appeals, which has jurisdiction over nine Western states.

"The Ninth Circuit is Exhibit A of activist judges," said Allen. "They are the ones who struck down the Pledge of Allegiance in schools; they have been reversed by the Supreme Court more than any other circuit in this country; they are in dire need of some common-sense men and women on that court who understand that the role of the judge is to apply the law, not invent it," Allen said.

But Senate Majority Leader Bill Frist avoided Tuesday giving any commitment on when Myers would get an up-or-down vote.

Democrats decry Brown's rhetoric
During the final hours of two days of Senate debate, Democrats portrayed Brown, a member of the California Supreme Court since 1996, as an extreme right-wing ideologue.

Senate Minority Whip Dick Durbin, a member of the Senate Judiciary Committee, condemned Brown for saying in a 2000 speech that Franklin Roosevelt’s New Deal was “the triumph of our own socialist revolution.”

He accused Brown of wanting to scrap one of FDR’s creations, the Social Security system.

“Is this a mainstream point of view? How many people do you run into who say, ‘You know, we ought to get rid of Social Security because it’s just pure socialism, it’s too much government’? ‘We don’t want to have Social Security as our last effort to provide a safety net for Americans’? Janice Rogers Brown reached that conclusion. And because of that extreme view she became the poster child for the George W. Bush White House to put on the D.C. Circuit Court of Appeals.”

Sen. Russ Feingold, D-Wis., and other Democrats assailed Brown’s dissent in a case in which her colleagues upheld a San Francisco ordinance that required hotel owners who converted their properties from residential use to tourist use to pay the city a fee to help low-income people pay for housing.

In her dissent, Brown contended that “private property, already an endangered species in California, is now entirely extinct in San Francisco.”

Brown added, “Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government.”

Republican sees her as defender of individuals
But one of her Republican allies, Sen. Jeff Sessions of Alabama, told the Senate that critics ignored her defense of individual rights.

He pointed to her dissent in a case in which a man was arrested for riding his bicycle and not carrying some form of identification.

Brown said she thought the police might have stopped him because he did not look like he belonged in the neighborhood.

She said she did not know the man’s race, but it later turned out he was black.

“She thought that was racial profiling. She was the only one (on the California Supreme Court) who said that,” Sessions said. “Who was standing up for someone who could have been a victim of discrimination? Janice Rogers Brown.”

Sen. John Warner, R-Va., called her “an extraordinarily accomplished individual.... I believe she’ll make an excellent jurist.”

Alluding to the fact that she was the first African-American woman to serve on California’s highest state court, Warner noted that he had recommended the first African-American to serve as a federal district judge in Virginia.

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