A Heap of Precedents

Slippery slopes, stare decisis, and popular opinion

In floor debate on June 8, Sen. Trent Lott, R-Miss., mused, "I don't think this has been one of the Senate's proudest hours." As he spoke, the Senate was preparing to vote along party lines to confirm California state Supreme Court Justice Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit, after one of the fiercer confirmation battles Washington has seen recently. Actually, the Brown debate was a good one: passionate, well briefed, and more revealing than most. But it revealed less about Brown than it did about the Republicans who confirmed her.

Brown is a remarkable woman. She is the daughter of an Alabama sharecropper, as the Republicans repeated ad nauseam. She rose from a segregated childhood to become a prominent jurist with a sizzling pen and fierce convictions. Her worldview is that of an uncompromising libertarian, particularly as concerns property (or economic) rights.

Property and contract are, for her, the lifeblood of liberty; and when, in the late 1930s, the country and the Supreme Court began treating property rights cavalierly, they set loose an inexorably advancing leviathan state. To Brown, moreover, it makes no sense to treat speech and privacy rights as sacrosanct but property rights as trivial, when the Founders viewed all those rights as of a piece.

More striking than Brown's philosophy is her tendency to express it in language reminiscent of Barry Goldwater in his intemperate prime. In a 2000 speech to the Federalist Society in Chicago, she said, "We no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate: the drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens." She spoke of the Supreme Court's belated acquiescence to the New Deal as "the Revolution of 1937," resulting today in "a debased, debauched culture." There is much more in this vein, and not just in her speeches. In a 2002 dissent involving a San Francisco housing regulation, she declared that private property "is now entirely extinct in San Francisco," replaced by "a neo-feudal regime."

Democrats charged that Brown's temperament is radical and her views nutty. In her defense, Senate Republicans had a good deal to say. Most interesting, though, is what they did not say. With only few and brief exceptions, they were unwilling to defend her philosophy.

They recounted her life story. (Can you say "sharecropper's daughter" 898 times?) They listed endorsements. They harped on the 76 percent vote she won in a 1998 state retention election. (Absent scandal, that kind of support is standard for judges in unopposed retention elections. Anyway, if a majority of Californians can't be wrong, can we look forward to Republicans' revising their positions on medical marijuana and stem-cell research?)

A frequent refrain was that nominees should not be disqualified for using, as Judiciary Committee Chairman Arlen Specter, R-Pa., put it, "colorful phraseology." Said the chairman, "It is true that she has made undiplomatic statements, but she is not in the State Department." Sen. Mitch McConnell (R-Ky.), debuted a theory of judicial confirmation that Democrats may have occasion to quote back to him: "We ought not [to] hold against nominees—particularly those who have written a good bit, published a good bit—their provocative statements."

They and other senators went on to argue that Brown's personal opinions should be distinguished from her judicial philosophy, which is one of restraint. The New Deal, they affirmed, will be safe in her hands. They noted that Brown has frequently written or joined in rulings that uphold government programs and regulations.

This is true. Writing for the majority in a 2000 case, for example, she upheld an assault-weapons ban that she openly detested. The legislature, she said, needed leeway to enact unfair and ineffective laws as long as it did not unduly burden individual or minority rights.

On the other hand, to claim, as Republicans did, that Brown's firebrand rhetoric reflects (a) mainstream opinion that (b) she won't act upon is as disingenuous as it is incoherent. "She has certainly expressed more sympathy for Lochner"—a 1905 Supreme Court decision, subsequently overturned, holding that property rights trumped government regulation—"than is currently respectable in mainstream legal circles," says David Bernstein, a George Mason University law professor who is sympathetic to Brown's views.

Presumably Brown's rulings will reflect her worldview. So the question comes back to whether her worldview is sound. Democrats merrily flayed Brown's small-government philosophy. More surprising was that Republicans declined to defend it.

An exception was Sen. Orrin Hatch (R-Utah). "The fact is, what she said was not that radical," he said on June 8. "When she claimed that an increasing public sphere tended to undermine the individualist spirit present at America's founding, she was saying nothing other than what de Tocqueville, Ronald Reagan, Booker T. Washington, Robert F. Kennedy [Robert F. Kennedy?], and countless political philosophers and economists have noted over the years…. My sense is that part of Justice Brown's commitment to rugged individualism is related to this hard-learned lesson: There are limits to what government can accomplish. That is precisely what President Reagan stated in his first Inaugural Address."

Correct. Reagan said that government was the problem, not the solution to our problems—a view that was not and still is not "mainstream," but that he was never reluctant to defend. Hatch's brief defense, however, was about as much support as Brown's libertarian philosophy received, apart from a sentence or two from Sen. Jeff Sessions (R-Ala.) to the effect that "private property is protected in our Constitution as much as free speech."

Otherwise, Republicans ran away from Brown's ideas as fast as their legs could carry them. Specter listed, approvingly, government regulations she has upheld. Sessions: "She has ruled on hundreds of cases affirming government regulations, for heaven's sake." Sen. Jim DeMint, (R-S.C.): "While she would likely describe herself as a person who believes in small government and limited regulations … Justice Brown has voted consistently to uphold economic, environmental, consumer, and labor regulations." Lott: "She has consistently voted to uphold regulations in every walk of life." You would almost think she was Walter Mondale.

Here arises a question for Republicans. If Brown's views were defensible, why not defend them?

Two possibilities present themselves. One is expediency, or, to use the sort of strong language that Brown herself sometimes favors, cowardice. On this theory, Republicans agree with Brown but know her views are controversial, indeed unpopular, and prefer not to make a case for them.

If so, this would not be the first time expediency has won the day in politics, but Republicans should beware. Liberals learned the hard way, with court-approved or court-imposed policies like forced busing and racial quotas, how dangerous it is to put in place policies and nominees that they could not defend in public debate. If Republicans hope to install small-government judges without publicly embracing small-government views, they are traveling the same road that led Democrats to political purgatory and made "liberal" a dirty word.

A second possibility is that Republicans ran from Brown's views because they regard them with ambivalence, or even embarrassment. On this theory, what Republicans support is not so much Brown's philosophy as her life story and the opportunity to put a conservative black woman on the federal bench. After all, Brown is a small-government ideologue in an age of Big Government conservatism. Republicans control the whole federal government and are not shy about using it. They want to be able to enact the sort of "economic, environmental, consumer, and labor regulations" that DeMint insisted Brown would uphold.

If so, Brown's nomination put Republicans in a bit of a pickle. Endorsing her philosophy would tie their hands; renouncing it would leave everyone wondering why they wanted her on the bench at all. Rather than confronting the tension between Big Government conservatism and small-government nominee, the Republicans pretended there was no tension. They maintained that Brown, like the Republican Party itself, would denounce Big Government without actually doing anything about it.

Either way, Republicans have come a long way from Reagan, who would have spoken as proudly of Brown's ideas as of her childhood. Lott was almost right: The Brown debate was not a proud hour for principled Republicans.

© Copyright 2005 National Journal

Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.