Why it matters

As Democrats ponder a nuclear option compromise, one of the president's judicial nominees tells of a "war" against people of faith.

Published April 26, 2005 12:35PM (EDT)

Why not just compromise on George Bush's judges?

Every now and then, it begins to seem like a reasonable idea. What's the worst thing that would happen if a few really extremist judges get on the federal appellate bench? They'd sit on three-judge panels, where their votes would be diluted by predominately Republican but somewhat more moderate colleagues. And it's not like we're talking about a Supreme Court justice here, at least not yet. Is it really worth the senatorial version of World War III to stop these nominations?

Maybe that kind of thinking leads Democrats like Joe Biden and Harry Reid to be floating various compromise deals. Or maybe they're just worried that Bill Frist really does have the votes to go nuclear. Either way, a compromise on Bush's judges doesn't seem like the worst idea in the world -- at least until a nominee like Janice Rogers Brown starts to speak.

Brown is the California Supreme Court justice Bush has nominated to serve on the U.S. Court of Appeals for the District of Columbia Circuit. Although the various federal circuit courts are technically equal in power to one another, the D.C. Circuit is a little more equal than the others because it hears cases so close to the seat of power, including most federal regulatory matters. And it's a breeding ground for Supreme Court nominees: Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg all came from the D.C. Circuit; so did Robert Bork, Miguel Estrada and dope-smoking Doug Ginsberg.

That's why Brown's nomination is a special cause for worry -- that and the fact that Brown herself is a special cause for worry. In a decade on the California Supreme Court, Brown has proven herself hostile to rights of every variety -- workers' rights, civil rights, disability rights and criminal rights. While the Los Angeles Times now says it's time to end the filibuster, the paper has also editorialized against Brown's confirmation: Two years ago, the paper said Brown's "doctrinaire and peculiar views" -- in particular, her "unrelentingly hostile" views about the "government's role in regulatory matters and protection of individual rights" -- made her a "troubling choice" for the D.C. Circuit.

But the Republicans have fronted Brown as one of the nominees they want on the floor when they push the nuclear button -- could it be because she's an African-American? -- and the Senate Judiciary Committee approved her nomination last week on a party-line vote. You might think that Brown would at least try to come off as a mainstream jurist as her nomination sits at the center of national politics. But you'd be wrong. Brown, already known for giving informal talks full of all sorts of intemperate remarks, traveled to Connecticut over the weekend, where she gave a 35-minute speech on the dangers of moving away from a faith-based interpretation of the U.S. Constitution and what she apparently sees as the persecution of Christians in America today.

According to the Stamford Advocate, Brown said that America must hold firm to the religious conscience of its founders. "When we move away from that," she said, "we change our whole conception of the most significant idea that America has to offer, which is this idea of human freedom and this notion of liberty."

Sounding an awful lot like the partisans who spoke at the religious right's Justice Sunday event, Brown said Abraham Lincoln wouldn't recognize today's America, a nation where religious Americans are under attack from secular humanists who would muzzle their speech and deny them their rights. "There seems to have been no time since the Civil War that this country was so bitterly divided," Brown said. "It's not a shooting war, but it is a war . . . . These are perilous times for people of faith, not in the sense that we are going to lose our lives, but in the sense that it will cost you something if you are a person of faith who stands up for what you believe in and say those things out loud." In the modern America of the secular humanist, Brown said, people are still free to be "spiritual" or to "meditate," but only if they "don't have a book that says something about right and wrong."

At a time when the religious right controls the political party that controls every branch of the federal government -- at a time when the opposition party is racing to wrap its own policies in religious rhetoric -- it's hard to see how anyone could think that the right to be religious is somehow under attack in America. But Brown, like other cultural warriors on the right, clearly sees the advantage in playing the persecution card. Recall the election-year fliers warning that John Kerry planned to outlaw the Bible. It wasn't true -- it isn't true -- but somebody must think this sort of thing plays well with the voting public.

Compromise on a judge like Janice Rogers Brown? We don't even know what she's talking about.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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