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Brown confirmation was a bitter pill for Democrats to swallow


WASHINGTON - In this week's debates over President Bush's federal court nominees, the principal Democratic rap against them has been that they are "out of the mainstream" of acceptable political thought and policy.

Particularly singled out for such an accusation was Janice Rogers Brown, just confirmed by a 56-43 vote in the Senate for a seat on the U.S. Court of Appeals for the D.C. Circuit.

As a California Supreme Court justice, Ms. Brown was castigated for hours by Democrats on the Senate floor as an "extreme political activist."

Senate Minority Leader Harry Reid of Nevada called her "the epitome of an activist judge ... not a legislator," adding "she has no right to do the things that she does."

There was irony in pinning the "political activist" tag on a conservative such as Ms. Brown. That has long been a label with which Republicans have harried their opposition party members.

Several other Democrats painted her as wanting to roll back their party's shining era of government activism, the New Deal, for dubbing federal regulation of workplace conditions of nearly 60 years ago "the triumph of our own socialist revolution."

The Democrats also dredged up a Brown speech in 2000 in which she accused senior citizens of using government social welfare programs at the expense of younger generations.

The seniors "blithely cannibalize their grandchildren," she said, "because they have a right to get as much 'free' stuff as the political system will permit them to extract." On another occasion, she said: "Where government moves in, community retreats, civil society disintegrates."

Despite invoking these and other observations, the Democrats' assaults amounted to no more than letting off steam. The confirmation of Ms. Brown and two other Bush federal court nominees, Priscilla Owen of Texas and William H. Pryor Jr. of Alabama, had already been signaled in the compromise fashioned by seven Republican and seven Democratic moderates to ward off use of the "nuclear option" to end filibusters on judicial choices.

The 14 together gave Senate Majority Leader Bill Frist, who had threatened the nuclear option, what he needed to achieve the 60 votes required to shut off a filibuster. On Ms. Brown's confirmation, six of the seven Democrats who were party to the compromise cast meaningless votes against her; the seventh, Sen. Ben Nelson of Nebraska, a chief architect of the compromise, was the only Democrat to vote for her.

As the Democrats futilely laid out their case against Ms. Brown, they may have wondered whether their earlier celebration over blunting the nuclear option had been premature. Putting her on what is considered the nation's second-most-important court for lifetime tenure was especially difficult.

One of the Democrats' rationales for making the compromise was that it preserved their right to filibuster a future Supreme Court nomination.

But one Republican participant in "the Gang of 14," Sen. Mike DeWine of Ohio, noted explicitly at the time that Republicans in the group felt free to support use of the nuclear option if the Democrats resorted to the judicial filibuster.

Democrats who complained so vociferously that Ms. Brown was out of the mainstream called on the president to confer with them on future judgeships to avoid such opposition. But the question is why he should do that when the compromise enables him to get the appointees he wants without such consultation.

In temporarily salvaging the judicial filibuster with the compromise, Democrats can fairly ask themselves another question: What was the point of preserving it if it can't be used to stop nominees they consider so far out of the mainstream?

Jules Witcover writes from The Sun's Washington bureau. His column appears Wednesdays and Fridays.

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