Introducing Janice Rogers Brown, President Bush’s latest nominee to the U.S. Court of Appeals for the District of Columbia Circuit, to the Senate Judiciary Committee Wednesday, Sen. John Cornyn, R-Texas, said, “I confess I feel like I’m a participant in a Kabuki performance.” Like that ritualized Japanese theater style, the script and stagecraft seemed all quite familiar. Like Clarence Thomas, Brown is a Southern-born conservative, with an up-by-her-bootstraps life story, and a history of giving speeches warning of the dangers of big government.
Brown, a onetime aide to former California Gov. Pete Wilson, has served as a justice of the California Supreme Court since 1996.
It is not uncommon for a president to select a judge who is not from Washington, D.C., to serve on the D.C. Circuit court. It is the most prestigious federal appeals court, partly because it is where five Supreme Court justices served before presidents chose them for the high court.
Current D.C. Circuit alumni on the Supreme Court are Thomas, Antonin Scalia, and Ruth Bader Ginsburg.
BOUND FOR THE HIGH COURT?
Some court watchers see Brown herself as a potential future Supreme Court nominee. Her profile as an articulate, sometimes polemical black conservative makes such speculation almost inevitable.
Brown is “a conservative African-American woman and for some, that alone disqualifies her” for the appeals court vacancy, contended Judiciary Committee chairman Sen. Orrin Hatch, R-Utah.
Under questioning from Sen. Edward Kennedy, D-Mass., about her anti-big government speeches, Brown insisted, “I don’t hate government; I am part of government. ... I know that there are some things that only government can do.”
Senior committee Democrat Sen. Patrick Leahy of Vermont said he did not want to accuse Brown of undergoing a “confirmation conversion” when she backed away from a 1999 speech voicing doubts about whether the Fourteenth Amendment to the Constitution “incorporates” Bill of Rights protections, applying them to the states as well as to the federal government.
But even Leahy’s use of “confirmation conversion” in his disclaimer summoned up memories of Thomas’ contentious Supreme Court confirmation hearings 13 years ago. Before they became a salacious sex spectacle, the Thomas hearings focused on his apparent changes of heart on some issues.
Just as Thomas had invoked the stern disciplinary image of his South Carolina grandparents who raised him, so too Brown in her testimony Wednesday invoked the memory of her Alabama grandmother, who taught her to survive the indignities of racial segregation.
“You can be bowed, but not broken — unless you allow people to do that to you,” Brown recalled her grandmother teaching her.
Another of her grandmother’s precepts: “There are no menial jobs. Do that job the best you can and someday when you go on to something better — and you will — they should say about you 10 years later, ‘That Janice, she was the best dishwasher we ever had.’”
Adding to the sense of déjà vu at Wednesday’s hearing was the presence of a pivotal player from the Thomas drama: Republican Sen. Arlen Specter of Pennsylvania, always regarded as a swing vote on conservative nominees.
Justice Thomas himself was a graphic presence at the hearings in the form of a crude cartoon from a Web site called Black Commentator that showed Thomas, National Security Adviser Condoleeza Rice and Secretary of State Colin Powell as buffoonish figures applauding a grotesque caricature of Brown as Bush announced her nomination.
Democrats didn’t explicitly threaten filibuster but said they were troubled by Brown’s record.
Sen. Dick Durbin, D-Ill., cited her as “a lone dissenter in a great many cases involving the rights of discrimination victims.” He said she had “a disturbing position on the sensitive issue of affirmative action” since she viewed it as “entitlement based on group representation.”
“Your record is that of a conservative judicial activist,” Durbin concluded.
He and Brown spent much time jousting over her critique of Justice Oliver Wendell Holmes’ dissent in a famous 1905 decision called Lochner vs. New York.
Holmes had argued that the Constitution “is not intended to embody a particular economic theory,” while Brown said the framers saw property rights as essential to preserving personal liberty.
Alluding to some of her provocative speeches, Brown assured Hatch, “I absolutely understand the difference in roles between being a speaker and being a judge.”
She explained that her speeches to law school audiences, such as one in which she said Franklin Roosevelt’s New Deal was “the triumph of our own socialist revolution,” were intended to “stir the pot, get people to think, to challenge them a little bit.”
As for her judicial decisions, Brown said, “I do the job the way it’s supposed to be done. I’m a principled judge, I’m not an ideologue of any persuasion.”
Brown showed she had pretty sharp elbows as a politician too. In a what could have been seen as a swipe at heavily staffed senators, she explained, “My speeches are maybe not the greatest. I don’t have a speech writer and I do these things myself and I have a demanding day job, so I often don’t have lot of time to do them.”
Later Brown got a zinger in at Sen. Dianne Feinstein, D-Calif., who quizzed her on her dissenting opinion in a case upholding a San Francisco ordinance that required hotel owners who converted their properties from residential use to transient use to pay the city a fee that would be used to help tenants who were forced out of the hotels.
“I have a great sympathy for the need for low-income housing in San Francisco; I myself can’t afford to live there,” Brown told Feinstein.
It seemed like a deftly subtle jab — since Feinstein grew up in the toney Presidio Heights section of San Francisco, served as the city’s mayor, and, married to wealthy investor Richard Blum, still has a residence there.
WHERE SPECTER STANDS
During a break in the hearings, Specter told MSNBC.com he was keeping an open mind on Brown as she fielded his questions.
“I’m listening. I think that she’s a real legal scholar and her opinions do not show an extreme point of view,” he said. “You can’t put her in a pigeonhole.”
Conservatives deride Specter as a liberal who abandons the party on key votes, most memorably in opposing President Reagan’s 1987 nomination of Robert Bork to the Supreme Court.
Specter played a high-profile role in challenging Thomas’s accuser, Anita Hill, in the 1990 hearings and voted to confirm Thomas, although he later voiced regret that the Judiciary Committee “rushed to judgment” on Hill and Thomas. He also said he was “very disappointed” with Thomas’s performance on the high court.
Specter has voted to shut off the Democratic filibusters of Bush appeals court nominees Miguel Estrada, Priscilla Owen and William Pryor, but the filibusters have spared him the need to vote on confirming those nominees.
Just as Brown is trying to win herself a new job, Specter is trying to keep his: he faces both a primary challenge next year from conservative Republican Rep. Pat Toomey and, if he survives that, a general election battle with Democratic Rep. Joe Hoeffel.
A vote for Brown would help Specter beat Toomey, but would be used against him in his battle against Hoeffel.