Likening Brown to Thomas or Scalia Helps and Hurts

Published May 05, 2005

| FoxNews.com

California Supreme Court Justice Janice Rogers Brown (search) has been the target of a Democratic judicial filibuster since 2003. Democrats say she's a radical conservative, worse in their minds than U.S. Supreme Court Justice Clarence Thomas (search).

Conservatives like Progress for America advertise Brown as a rigorous thinker who applies the Constitution as written, not as it has evolved. They point to her inspiring story as a woman who started as the daughter of sharecroppers to become the first African-American woman on the California Supreme Court.

Liberals don't deny Brown her journey, but say she has never come to terms with the New Deal (search) or the Great Society (search), and that has warped her judicial philosophy.

They point to a speech to the Federalist Society where Brown describes 1937 as a "triumph of our own Socialist revolution."

"That, of course, was the year the Supreme Court upheld the constitutionality of the Social Security Act and this is what she's against," said People for the American Way President Ralph Neas.

Brown's speech also said government often harms more than it helps.

"Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies," Brown said. "The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible."

Conservatives call Brown a judicial intellectual in the mold of Supreme Court Justice Antonin Scalia (search).

"She is a very clear-thinking nominee and probably the most intellectually forceful of all of President Bush's nominees, which is why, really, the left is opposed to her," said Manuel Miranda of the National Coalition to End Judicial Filibusters.

Critics also point to a now-famous dissent Brown authored as a California Supreme Court justice in a case where a hotel owner tried to stop the city of San Francisco from charging him more than $500,000 to increase the stock of low-income housing. The majority sided with the city. Brown called the ruling government-sanctioned theft.

"Theft is theft even when the government approves of the thievery. Turning democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government," she wrote.

If confirmed to the Federal Appeals Court for the D.C. Circuit, Brown would oversee cases that often limit or expand the government's regulatory powers. The stakes for the right and left could scarcely be higher, particularly since many D.C. circuit candidates are nominated to the U.S. Supreme Court.

Click in the box near the top of the story to watch a report by FOX News' Major Garrett.

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