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In Those Days There Was No King....
By Horace Cooper
November 7, 2003

In Judges, a book of the Old Testament, four centuries of a cycle of corruption and purity are detailed. At the conclusion of each cycle a champion rises up to eviscerate the wickedness and lead the children of Israel back to righteousness. Washington has its cycles too. After the hysterics by the left against Robert Bork and Clarence Thomas the personal destruction cycle -- heretofore unseen in the judicial nomination process -- seemed to wane. But in the wake of President Bush's latest judicial nominees, it seems that the "politics of personal destruction" are back in full swing.

The most recent case, the battle over California state Supreme Court Justice Janice Rogers Brown's confirmation to the D.C. Circuit Court of Appeals. And the stakes are much higher and the camps are far more divided. If her nomination fails, her opponents will have succeeded in destroying her reputation and making it much harder for other similarly stellar candidates to even consider going through the same ordeal.

Before her nomination Judge Brown was a well-regarded Associate Justice of the California Supreme Court, a position she has held since May 1996. She is the first African-American woman to serve on California's highest court, and was retained with 76 percent of the vote in her last election.

The President's political opponents are engaging in a scandalous smear campaign to distort her record and prevent her confirmation. What has this daughter of sharecroppers born in Greenville, Alabama done to deserve this opprobrium? She rejects orthodox liberalism as a political philosophy, is a skeptic as to whether more government is the solution to all problems facing American society and believes that judges ought to interpret the law, rather than remake it. But it's this last view - a well accepted notion by most Americans and President Bush that is the source of angst by her opponents. As Judge Brown said in one of her opinions, "The quixotic desire to do good, be universally fair, and make everybody happy is understandable. There is only one problem with this approach. We are a court." Yes, Judge Brown believes that courts should act like courts. She also still believes in the constitutional right to own property, engage in free speech, and the other amendments actually listed in the Bill of Rights.

"Once again a majority of this court has proved that if enough people get together and act in concert, they can take something and not pay for it," she wrote. '"But theft is theft. Theft is theft even when the government approves of the thievery." It's obvious that this commonsense plain-talking woman belongs on the bench.

Unfortunately, although most American households share her views, the liberal special interest groups in Washington can't abide this effrontery and are bound and determined to stop her at all costs. Liberals prefer to go to the courts to attain political outcomes that they can't achieve in an open and fair political debate. Remarkably, they believe that our nation's judges should act as "philosopher-kings" and be the policy-makers of last resort. And recently, they've taken to dispensing with the democratic elements of our constitutional system altogether and have started running to the courts as a matter of first resort.

Whether it's their attacks on the Boy Scouts, the Pledge of Allegiance, or the Ten Commandments, Judge Brown's liberal opponents can't abide any judge who on principle refuses to impose their elitist counter-cultural views on the rest of us.

In fact, Judge Brown's refusal to take up the philosopher-king duties frustrates liberal activists across the board. Nan Aron, executive director of the ultraliberal Alliance for Justice contends that they "have profound concerns about her ability and willingness to put aside her extreme, anachronistic views of the law." And for her faithfulness to the constitution and mainstream legal precepts, the all Democrat membership Congressional Black Caucus accused her of being a "notoriously conservative lawyer." In other words, they'd rather have another Californian, former liberal activist Judge Rose Bird on the D.C. Circuit Court of Appeals. You may remember her, she also served on the California Supreme Court. But unlike Justice Brown, she was recalled by Californians appalled by her liberal judicial activism.

While they criticize mainstream jurists like Judge Brown for holding so-called rigid and "antiquated" views, it is the liberals themselves who can't put aside their extreme legal views. They consistently yield to the temptation to rewrite the law from the bench. The record of activists making the law "what they want it to be" rather than simply "telling us what it is" is replete. Opinions regarding school prayer, the pledge of allegiance and homosexual rights, etc have little to no textual validity and are simply value judgments made by legislators masquerading as judges. Psychologists have a term for this behavior, it's called projection. But it's no excuse.

And neither is the fact that the earth shattering political losses the left has experienced across the nation over the last decade a sufficient excuse for their desperate efforts to subvert the judiciary.

It's true that the challenge by liberals to reposition their philosophy so that it is more attractive to the American electorate is a difficult one. Liberals no longer control a majority of statehouses or governorships; they are no longer the majority in the U.S. Senate and the House of Representatives. But they can't yield to the temptation to bypass the electoral process by relying on the courts. Such reliance will only lead to an atrophying of their already weakened political capabilities and will ultimately be rejected as one or more constitutional amendments place a final check on the Court and the liberals' political ambitions once and for all.

Or as Justice Brown said in a dissenting opinion, "Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government ...."

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Horace Cooper, a Senior Fellow with the Centre for New Black Leadership, regularly writes a column for UPI and GOPUSA. He was praised as a key Republican strategist in Elizabeth Drew's New York Times bestseller "Showdown: The Struggle Between the Gingrich Congress and the Clinton White House" and extolled as a "poster conservative" by Michele Mitchell in "A New Kind of Party Animal"