Too independent: Black female nominee getting shunned in Senate

How times do change.

Not so long ago you couldn’t have invented a better biography to win the sympathy of those who have a heart for the underdog:

Female, black, born in 1949 to Alabama sharecroppers, moved to California, graduated from California State University, earned a law degree at age 28 at the University of California School of Law, worked for state agencies and in a private firm before being appointed to the California Supreme Court, nominated by the president to join the important Appeals Court of the District of Columbia.

Janice Rogers Brown, not long ago, would have been the darling of the liberals.

No more. She is a nominee of President Bush, and the liberal Democrats are filibustering to keep her confirmation vote, along with those of other judicial nominees, from reaching the Senate floor.

What the Democrats don’t like about her, mainly, is her high regard for property rights.

For example: San Francisco has an ordinance under which the city extorts a hefty fee from the owners of residential hotels who wish to convert their properties to tourist use. In 2002, the California Supreme Court upheld that law. Justice Brown dissented — and did so in a manner that demonstrated a powerful command of common sense as well as of the language.

She wrote, “Private property, already an endangered species in California, is now entirely extinct in San Francisco.” The city, she added, had become a ''neo-feudal regime.”

She admonished her fellow justices that, “Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government ... The free use of property is just as important as the right to do so through speech, the press, or the free exercise of religion.”

Democratic Sen. Diane Feinstein of San Francisco, among others, didn’t appreciate that. At Senate Judiciary Committee hearings on the nomination, Ms. Feinstein asked Ms. Brown about it, saying low-income housing was needed in San Francisco.

“I have a great sympathy for the need for low-income housing in San Francisco,” Ms. Brown replied. “I myself can’t afford to live there.”

Her sort of thinking is too independent for the dogmatic liberals who populate the Senate. The Constitution directs that federal judges be nominated by the president and that the Senate vote to approve or disapprove of them. The Democratic filibusterers are violating the Constitution.

If two senators, John Kerry of Massachusetts and John Edwards of North Carolina, would give the word, the other Democrats would allow the Senate to vote on Ms. Brown’s nomination. There was a time when true liberals would have done that.

Published in Editorials on September 1, 2004 12:06 PM