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Extremist judge does not belong on federal bench

THE BALTIMORE SUN

ATLANTA - Janice Rogers Brown's life story is testimony to the triumph of intellect and will, the indomitability of the human spirit and the singular promise of America. Born to sharecroppers in Greenville, Ala., in 1949, Ms. Brown, who is black, spent her childhood under the brutal lash of Jim Crow. Against the odds, she has risen to occupy a seat on the California Supreme Court.

Still, she does not belong on the federal bench.

Justice Brown is one of a handful of extremist judicial nominees put forward by President Bush but blocked, so far, by the U.S. Senate. And for good reason.

She labels herself so conservative - among the rare "true conservatives" - that she should be "included on an endangered species list."

Republican senators, led by Majority Leader Bill Frist and backed by Vice President Dick Cheney, have threatened the "nuclear option": ending the filibuster of judicial nominees. While the vast majority of Mr. Bush's judicial selections - more than 200 of them - have been approved, Senate Democrats have used the filibuster to block a few of the president's ultraconservative nominees.

If her writings are any indication, Justice Brown is a woman of brilliant intellect, sparkling wit and literary depth.

In a dissent in a 1996 antitrust case, she penned this caustic observation of her colleagues on the California Supreme Court: "The quixotic desire to do good, be universally fair and make everybody happy is understandable. Indeed, the majority's zeal is more than a little endearing. There is only one problem with this approach. We are a court."

Her flair notwithstanding, she has no business on the federal bench. Her views are well outside the mainstream.

While most Americans support Social Security and the other workers' protections that grew out of the New Deal, Justice Brown holds to a peculiar constitutional view that characterizes the New Deal as "the triumph of our own socialist revolution." Speaking to the Chicago chapter of the Federalist Society five years ago, she said: "The New Deal ... inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document."

She has no respect for precedent and frequently uses her rulings to express far-reaching opinions on matters not directly before the court. When parents of a child who had committed suicide sought to hold the school district responsible, Justice Brown went beyond disagreeing with them. She wrote: "The public school system is already so beleaguered by bureaucracy; so cowed by the demands of due process; so overwhelmed with faddish curricula that its educational purpose is almost an afterthought." She would be a true "activist" judge, something conservatives claim to abhor.

Republican senators will undoubtedly try to use her personal story - the narrative of her victory over poverty and racism - to win support. Indeed, some have already suggested that any opposition to Justice Brown is racist.

She ought to insist that her supporters refrain from referring to her race. She has no use for racial classifications; in 2000, she wrote the California Supreme Court's opinion upholding Proposition 209, which bans minority outreach programs. In the ruling, she issued a sweeping and harsh critique of affirmative action efforts, suggesting they were no different from Jim Crow laws.

Justice Brown has every right to be an ultraconservative. That's what the civil rights movement was all about: giving black Americans the opportunity to live as they desired, choosing the neighborhoods, schools, churches and political philosophies that best suit them.

So I will honor her by judging her no differently from the way I would a white man with the same extremist views: She has no business on the federal bench. Her nomination is among the strongest arguments for keeping the filibuster alive.

Cynthia Tucker is editorial page editor for The Atlanta Journal-Constitution. Her column appears Mondays in The Sun.

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