'Mainstream'? These folks are in way over their heads


Is Janice Rogers Brown, the California Supreme Court justice who was just confirmed by the U.S. Senate to sit on the U.S. Court of Appeals for the District of Columbia Circuit, more mainstream than the Congressional Black Caucus?

I'm sure the caucus wouldn't agree. It's members opposed Brown's nomination from the start. In 2003, Maryland's own Rep. Elijah Cummings, who was then CBC chairman, said that Brown was one of several of President Bush's nominees "who are out of the mainstream of America."

Brown's supporters noted that the last time her name appeared on a California ballot, she received 76 percent of the vote. Let's compare that with the elections that gave us Cummings and the other members of the CBC.

Brown's vote tally was statewide. California is not only the most populous state in the country, it's arguably the most racially, ethnically, religiously and politically diverse.

Cummings and most other CBC members hail from districts that are overwhelmingly black and Democratic. Only one was elected in statewide balloting. As for the rest, if their districts were as diverse as California, probably not one of them would have been elected PTA secretary, much less to Congress.

So who's really "out of the mainstream"? Brown with 76 percent of the vote of a highly populous and diverse state, or CBC members from districts that are, for all practical purposes, homogenous?

Cummings hinted that my analysis is pretty jugheaded, although he used much more polite language.

"I want to make sure you're comparing apples to apples and oranges to oranges," Cummings said. "I've always wondered about that 76 percent number. This is an up or down vote. There's nobody running against those judges. I had an inkling that [Brown's] 76 percent was a little low."

So Cummings said he compared the vote Brown got in California with some of the votes that members of Maryland's Court of Appeals received in recent elections. Cummings said Maryland voters approved Judge Lynne A. Battaglia by over 88 percent, Judge John C. Eldridge by over 87 percent and Judge Robert M. Bell by nearly 90 percent.

Cummings is my congressional representative and old homeroom buddy -- we both went to City College. Our math teachers taught us pretty much the same things. So we both know that Brown's 76 percent of voters in a state with a population of about 35 million people comes to a lot more votes than Bell's 90 percent of voters in a state with just over 5 million people. Can all of those California voters be "out of the mainstream"?

But Cummings listed other reasons he and CBC members opposed Brown. The congressman noted several California Supreme Court decisions in which Brown was a dissenting voice. Cummings considers the issues in those cases in which Brown dissented as being pretty mainstream. He noted Brown's dissent in which she seemed willing "to strike down municipal rent control ordinances," her "push to eradicate laws penalizing employers who fire whistle-blowers" and her dissent in one case where other justices ruled that employers who used racial epithets in the workplace had no First Amendment protection.

Columnist and civil libertarian Nat Hentoff -- not one given to defending right-wing extremists -- said Brown got a bum rap on that last charge. Hentoff said the case involved a judge who wanted to come up with a list of offensive words that would be banned from the workplace, even if employees weren't around to hear them. Brown voted, Hentoff contended, against what was a case of prior restraint of free speech and a blatant violation of the First Amendment.

But let's assume that Brown is guilty of what the liberals charged: that she was really arguing that employers have the right to use abusive racial epithets against their employees. Is such an absolutist view of First Amendment rights of free speech really "out of the mainstream"? Hasn't the American Civil Liberties Union -- I think Cummings would agree it's a pretty mainstream organization -- argued for the free-speech rights of Nazis, pornographers and those who desecrate religious icons?

Reasonable people can disagree on things such as whether employers have the right to hire and fire whom they please and whether property owners have the right to determine rents. (Is Judge Joseph H. H. Kaplan, who overturned a referendum of Baltimore voters that supported rent control in 1979, "out of the mainstream"?)

But it looks like today's Democrats are saying "there is only one definition of mainstream, and it's ours."

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