# What's the REAL issue with the Senate's judicial confirmation process? **URL:** \ **Category:** Great Debates\ **Created:** [April 26, 2005, 4:24pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179 "2005-04-26T16:24:10Z")\ **Posts on this page:** 12\ **Page:** 7
**Author:** ![manhattan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manhattan/32/7_2.png) [@manhattan](https://boards.straightdope.com/u/manhattan)\ **Post date:** [May 4, 2005, 12:51pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/121 "2005-05-04T12:51:37Z")
> [@elucidator](#): > > Is she brilliant, **Manny**? Is the light of her reasoned jurisprudence so bright, so clarifying, that we simply _must_ have the advantage of her wisdom? What does she bring that is so desperately needed? I read the entire speech from which the lefty blogs plucked that “inoculated the federal Constitution with a kind of underground collectivist mentality” quote. I’m not sure I can be objective – I think I might now have a little crush on her. Oh, and for ghod’s sake don’t let **Libertarian** see that speech. He’ll build a shrine to her! > [@Plan B](#): > > Has anyone mentioneed the racial overtones yet? Democrats are scared that if Janice Brown is nominated if will be a tipping point for black support for Republicans. All of Justice Brown’s published writing indicates that she would have a coronary if this became a significant issue. > [@](#): > > I called Schumer’s office and spoke to one of his aides who was working on these appointments. I asked what the problem was with these nominees and he told me they’re too extreme. I asked for specifics and he absolutely refused to give me any. To be fair, nothing gets a Congresscritter in trouble as fast as one of his aides spouting off (just ask [Mel Martinez](http://abcnews.go.com/Politics/Schiavo/story?id=600937)). It strikes me a completely reasonable for a Senator to instruct his staff to mail out whatever canned letter he’s approved and to keep their yaps shut. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [May 4, 2005, 4:56pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/122 "2005-05-04T16:56:06Z")
> [@manhattan](#): > > What she did opine in the course of dissenting against prior restraint was that the mere expression of repugnant opinions of which a potential claimant was not aware could not be cause of action under a “hostile workplace” action. I can imagine a set of facts which might demonstrate that she was in error, but given the facts at hand (more specifically, her assertion that there were not sufficient facts for the court to make the determination it did) her opinion was certainly reasonable as I read it. As the majority pointed out, the injunction was greatly limited and only applied after a finding by the jury that the “use of racial epithets was sufficiently severe or pervasive to constitute employment discrimination. The trial court further found that injunctive relief was necessary to prevent a continuation of the abusive work environment.” The injunction was a measure of relief granted AFTER a jury trial and a judicial finding. All of which is, in this case, a side note to the issue of Brown’s dissent. The other dissenting judges also had problems with the issuance of the injunction, and, although I disagree with them, they did not go so far as Justice Brown did. Putting aside her overblown rhetoric and insulting tone (someone’s been taking lessons from Scalia), her opinion calls into question not just FEHA, but also rulings already made by the U.S. Supreme Court. As she says (cites removed): > [@](#): > > In Meritor Savings Bank v. Vinson, the United States Supreme Court held that a “hostile environment” could constitute workplace sex discrimination in violation of title VII of the Civil Rights Act of 1964 (Title VII). Specifically, the high court held that a plaintiff need not suffer “‘tangible loss’ of ‘an economic character,’” as distinguished from “‘purely psychological aspects of the workplace environment,’” in order to recover under Title VII. In support of its holding, the court cited with approval the Equal Employment Opportunity Commission’s guidelines on discrimination because of sex, which defined unlawful “sexual harassment” as including “‘verbal … conduct of a sexual nature.’ … [having] ‘the purpose or effect of … creating an intimidating, hostile, or offensive working environment.’” > In Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17 (Harris), the court reaffirmed and refined its holding in Meritor. The court held that a discriminatory environment need not cause “concrete psychological harm” to violate Title VII; rather, it need only “reasonably be perceived … as hostile or abusive.” (Id. at p. 22.) More important, in Harris, unlike Meritor, the only conduct that was at issue was offensive speech. Thus, in Harris (and in dictum in Meritor), the high court recognized what is in essence the statutory tort of injurious speech. So she seems to be saying that, although Meritor and Harris recognize that speech can indeed be the basis for an actionable suit under federal regulations, she refuses to accept that premise in the case before her. She goes on to denigrate those decisions and indicate that, contrary to their findings, she may very well find that Title VII could likewise be unconstitutional. Having a judge opine that she will not apply, and does not agree, with precedent is troubling to me. After taking the time to digest the case, I would agree that the rhetoric of the left is indeed overblown regarding her opinion in this one case. While she shows an alarming lack of deference to Supreme Court decisions that disagree with her politics, it is not completely and utterly beyond the realm of possibility that she is not the anti-Christ. And were this the only decision where she had these problems, I wouldn’t be nearly so concerned. But it’s not. > [@manhattan](#): > > I found the opinion to be slightly overbroad for my personal tastes but well within the norm of interpretation of law. I find the interpretation that the opinion opposes all affirmative action to be specious, at best. It does seem to come down pretty firmly against quota based-affirmative action, as it should – it violates the plain letter of the law, the avowed intention of the Civil Rights Act of 1964 and the Constitution as amended following the Civil War. Read the opinion yourself and respond with your actual personally-informed opinion, please. To be frank, I find more value in the opinions of the people on this board than I do from activist sites (of any color). If I wanted to argue with the site I’d send them an angry email or something. One man’s “overbroad” is another man’s conservative idealism in print. The legal determination she made in Hi Voltage, that San Jose’s minority program violates the California Constitution, was agreed to by 6 other justices. But even some of them were concerned by Brown’s overblown rhetoric, insulting tone, and lack of deference to Supreme Court precedent. As Chief Justice George stated in his concurrence: > [@](#): > > I cannot join the majority opinion, however, because in my view the major portion of that opinion’s discussion is not only unnecessary to the resolution of the issue before us, but is likely to be viewed as less than evenhanded. Particularly in a case involving an initiative measure that is as sensitive and potentially divisive as Proposition 209, I believe it is essential that this court speak through an opinion whose language and analysis clearly demonstrate to the parties and to the public that the court appreciates that its task is simply to interpret and apply the initiative’s language so as to effectuate the electorate’s intent. Viewing the majority opinion as a whole, I believe it falls short of this standard. and > [@](#): > > Our role, rather, is simply to interpret and apply the language of the new state constitutional provision so as to effectuate the intent of the voters who adopted the measure. In my view, the majority opinion departs from that role in a number of respects. or Justice Kennard, who stated: > [@](#): > > Because the issue presented is readily resolved by reference to the ordinary meaning of the constitutional text and a review of the ballot materials submitted to the voters who enacted the constitutional provision, I see no need to discuss potentially divisive matters, such as the history of judicial construction of federal constitutional equal protection and statutory civil rights provisions as applied to racial distinctions, possible modifications of the City of San Jose’s program to “satisfy section 31 in both its end and its means”, or commonly offered justifications for race-conscious affirmative action programs. Justice Brown went far out of her way to make the decision in Hi-Voltage a partisan screed against affirmative action, as opposed to a tempered judicial decision. In addition, while doing so, she, once again, attack, and show a complete lack of deference to United States Supreme Court decisions (Bakke, Johnson, Price) that have upheld certain affirmative action programs. Her opinion, as written, would find every single affirmative action program unconstitutional, Supreme Court precedent be damned. She has her ideology set, will rule according to it, will do so in an unfair, insulting manner. She is not a judicial moderate, she is not an even-tempered justice, she has shown herself willing to overrule precedent if it fits her preconceived ideology. She is not someone who should be on the federal bench. While part of the reason is surely because of her politics (anti-affirmative action, anti-Title VII, her speechs that would put **Dewey** and **Bricker** to shame), there are also valid concerns about her ability to follow precedent. > [@Shodan](#): > > It’s the same thing. The “actual problem” with these judges is that Democrats and other liberals don’t like their politics. Certainly for some, but that is not the sole reason, your continuous braying notwithstanding. There have been plenty of ideological conservatives that have had no problem getting onto the federal bench with the consent of the Senators. It’s the ones who kowtow to that ideology when they step on the bench that concerns me. > [@PlanB](#): > > Has anyone mentioneed the racial overtones yet? Democrats are scared that if Janice Brown is nominated if will be a tipping point for black support for Republicans. Gosh, you don’t think Bush took into account Brown’s race or gender into account do you? Nah, couldn’t be. As an aside, I read somewhere that the Black Congressional Caucus is against her appointment too. ---
**Author:** ![manhattan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manhattan/32/7_2.png) [@manhattan](https://boards.straightdope.com/u/manhattan)\ **Post date:** [May 4, 2005, 10:37pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/123 "2005-05-04T22:37:39Z")
> [@Hamlet](#): > > After taking the time to digest the case, I would agree that the rhetoric of the left is indeed overblown regarding her opinion in this one case. While she shows an alarming lack of deference to Supreme Court decisions that disagree with her politics, it is not completely and utterly beyond the realm of possibility that she is not the anti-Christ. I disagree with substantiallyall of your analysis, but since we agree that the criticism of Justice Brown based on that case is overblown I think we should move on, lest a 2-pager become a 12-pager. 🙂 > [@](#): > > Her opinion, as written, would find every single affirmative action program unconstitutional, Supreme Court precedent be damned. She has her ideology set, will rule according to it, will do so in an unfair, insulting manner. She is not a judicial moderate, she is not an even-tempered justice, she has shown herself willing to overrule precedent if it fits her preconceived ideology. She is not someone who should be on the federal bench. While part of the reason is surely because of her politics (anti-affirmative action, anti-Title VII, her speechs that would put **Dewey** and **Bricker** to shame), there are also valid concerns about her ability to follow precedent. That’s just not true! That’s what liberal groups are saying, but its just not true. Look. Justice Brown has been in the judging business for over 10 years now, all on the appellate level. And all those liberal activists can dig up are decisions where she didn’t ignore precedent but where they say there are indications that she might. Where’s the example where she actually did ignore a Supreme Court precedent? 10 years in the judge business and they can’t find one? What does that tell you? In testimony before Congress she acknowledged that she also recognized the “right to privacy” as established by SCOTUS and that it was precendent controlling on lower courts and that she’d hold to it. There were other examples. You’ve got to stop listening to these people – they’re mad because Justice Brown (and every other judge in California) voted to uphold Prop. 209. Nothing will satisfy them short of payback by smearing her and terminating her career. It can work both ways. Watch carefully: **Justice Janice Rogers Brown is too liberal for our courts!** Justice Brown, alone among her fellow judges, voted to release a dangerous drug offender because she said the arresting officer was engaged in “racial profiling.” We can’t have judges looking over the shoulder of our hard-working police officers in the war on drugs! Justice Brown also voted to throw out a search even when the person living there consented! Justice Brown voted to uphold California’s strict assault weapons ban! The NRA has run ads against her re-election. Justice Brown voted to interpret pension laws expansively, costing taxpayers millions! Justice Brown told Congress that she would obey the Roe v. Wade decision, clearing the way for the continued murder of millions of helpless babies! Justice Brown voted to set aside two death penalities on “technicalities.” She is soft on crime. Clearly, Justice Brown is a dangerous liberal, way outside the mainstream of America and too dangerous to serve on America’s most important appeals court! This message is brought to you by the **manny** committee to twist the truth using only true facts. “I’m **manny** and I disavow everything in this message.” ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 5, 2005, 12:49am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/124 "2005-05-05T00:49:51Z")
> [@Hamlet](#): > > Surely you aren’t that dense are you? … > > Certainly for some, but that is not the sole reason, your continuous braying notwithstanding. I thought I had remembered you as one of those who could disagree without being an asshole about it. Too bad. We have plenty of the other kind about. Regards, Shodan ---
**Author:** ![Plan\_B](https://avatars.discourse-cdn.com/v4/letter/p/3ec8ea/32.png) [@Plan\_B](https://boards.straightdope.com/u/Plan_B)\ **Post date:** [May 5, 2005, 2:23am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/125 "2005-05-05T02:23:40Z")
> [@Hamlet](#): > > Gosh, you don’t think Bush took into account Brown’s race or gender into account do you? Nah, couldn’t be. As an aside, I read somewhere that the Black Congressional Caucus is against her appointment too. Well if you’d bothered to read the next line or two you would have seen that I made exactly that point. W is pretty good at this politics stuff for a dummy; live with it. As for the Black Congressional Caucus, I’d love to hear some of them debate Brown’s nomination. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 5, 2005, 2:34am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/126 "2005-05-05T02:34:30Z")
Might not take long. All the blacks in Congress are Democrats. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 5, 2005, 5:10am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/127 "2005-05-05T05:10:33Z")
You’re confusing me with that last bit, **Manny**. Are you trying to suggest that she is not as conservative as she’s made out to be? Like just to the left of Calvin Coolidge? But didn’t you suggest that such was precisely what you _like_ about her? Well, if she isn’t as conservative as she’s made out to be, then the Dems are opposed to her because she’s Lithuanian? I mean, after passing 95% of the Bushivik nominations, all of whom are equally conservative or more so than she, they decide to pick her to make a big stink about… for no particular reason? So we can reasonably assume she is as conservative as is suggested. You defend her by suggesting that she respects precedents. Well, she has to, doesn’t she? Dems de rules, otherwise she gets overturned, and they don’t like that. But how is she likely to behave if she has more power over how precedents get to _be_ precedents? Best indications are that there is quite a bit of those precedents she would like to see reversed, as witness her attitude toward Social Security. An “activist”, you might say. If, as all this suggests, she is more conservative that the 95% of nominees already passed, then we have very good reason to consider that she might be too conservative. (Assuming that you are willing to admit that such a thing exists…) Now here’s where we get to civics and civility. If the party that represents roughly half the voters judges a candidate as too extreme, the party that represents the other half is bound by civility to respect that. Civility, mind you, not raw legality. Unless, of course, her legal mind is so luminary and her juris so unflinchingly prudent, that the Republic is in peril if she should fail… Is this woman, or Ms Owen or Mr Pryor so desperately needed that it justifies chucking negotiation and compromise out the window? Do you really believe that 52% of the country has a clear privilege to run roughshod over the other 48%? They won the big game, so they get to pee on our tires? Think you’ll still feel that way when the shoes on the other foot? “We’re nominating Michael Moore!” “He’s not even a lawyer!” “Tough shit! Whataya gonna do? Filibuster?” ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [May 5, 2005, 2:31pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/128 "2005-05-05T14:31:08Z")
> [@manhattan](#): > > I disagree with substantiallyall of your analysis, but since we agree that the criticism of Justice Brown based on that case is overblown I think we should move on, lest a 2-pager become a 12-pager. 🙂 Fair enough, my argument has been made. > [@manhattan](#): > > That’s just not true! That’s what liberal groups are saying, but its just not true. I know it’s tough for you to get past the belief that someone who is against the nomination of Justice Brown is anything but a brainless sycophant to the left wing misinformation campaign, but try, just for a second, to get beyond that. It isn’t just “liberal groups” its also the Supreme Court justices who sit on the bench with her. I provided you with 3 quotes from two supreme court justice who indicate she goes too far in High Voltage. I’ll add another: > [@](#): > > The overall tenor of the majority opinion’s discussion of these decisions–including its repeated and favorable quotation from dissenting opinions in these cases and from academic commentators critical of these decisions–leaves little doubt that the majority opinion embraces the view that the types of affirmative action programs at issue in these past decisions always have violated the provisions of the federal and state equal protection clauses and Title VII, and that the numerous decisions of the United States Supreme Court and this court that reached a contrary conclusion were wrongly decided. That’s not some liberal blog, that’s the Chief Justice of the California Supreme Court. As you pointed out, read the opinion yourself. Pay attention to the parts where she is highly critical of Weber and Johnson. She states: “As with decisions of the United States Supreme Court, we thus find a fundamental shift from a staunch antidiscrimination jurisprudence to approval, sometimes endorsement, of remedial race and sex-conscious governmental decisionmaking.” Not only has she demonstrated an obvious distaste for those decisions, she went out of her way to put it into an opinion that did not need it. > [@manhatttan](#): > > Look. Justice Brown has been in the judging business for over 10 years now, all on the appellate level. And all those liberal activists can dig up are decisions where she didn’t ignore precedent but where they say there are indications that she might. Where’s the example where she actually did ignore a Supreme Court precedent? 10 years in the judge business and they can’t find one? What does that tell you? In testimony before Congress she acknowledged that she also recognized the “right to privacy” as established by SCOTUS and that it was precendent controlling on lower courts and that she’d hold to it. There were other examples. She is not stupid enough to completely ignore precedent or overrule a case that she can’t. What she has done is show absolutely no deference to those decisions that don’t fit her ideology. Do you honestly think that if she were appointed to the Supreme Court she wouldn’t attempt to overrule the precedent on affirmative action? Even after reading her screed, her papers, and her speeches? > [@manhattan](#): > > You’ve got to stop listening to these people – they’re mad because Justice Brown (and every other judge in California) voted to uphold Prop. 209. Nothing will satisfy them short of payback by smearing her and terminating her career. _Sigh_ I know this board has more than it’s fair share of unthinking liberals who spout off without a concern for the rightness of their position. Please stop lumping me in with them. It’s demeaning. Contrary to your assertion, this isn’t a vendetta against Brown for her decision in Hi Voltage. ALL 7 JUDGES AGREED IN THAT CASE. Yet I haven’t seen the animosity directed at her co-justices. The Democratic Senators didn’t single her out of all the other conservatives that Bush put out because they just don’t like her. There’s a reason she’s one of only a few that they are challenging. > [@Shodan](#): > > I thought I had remembered you as one of those who could disagree without being an asshole about it. I apologize for any offense. I’d hate to think I’m adding to the hostility in this place, and I’m sorry if I went to far in making a point. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 5, 2005, 3:02pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/129 "2005-05-05T15:02:57Z")
> [@Hamlet](#): > > I apologize for any offense. I’d hate to think I’m adding to the hostility in this place, and I’m sorry if I went to far in making a point. Thank you! Regards, Shodan ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [May 6, 2005, 6:27pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/130 "2005-05-06T18:27:02Z")
So, can we drop the phony outrage at blocking nominees now, and get back to admitting that both parties oppose judges whose philosophies they don’t like, and have fought to keep the opposing side off the bench via all manner of means? It seems like this outrage is waved around for the rubes, and then smirkingly dropped when directly confronted in smaller confines like these boards. The only distinction I can see here is that when Republicans were in the minority, Democrats at least didn’t scorched-earth dismantle every avenue of minority influence. They bitched and moaned, but they generally tolerated the rules and traditions. Republicans, however, have been dismantling all those avenues of influence they once held dear to. Which I suppose isn’t really objectionable other than their phony sanctinmony while doing so. ---
**Author:** ![theRanger](https://avatars.discourse-cdn.com/v4/letter/t/ecd19e/32.png) [@theRanger](https://boards.straightdope.com/u/theRanger)\ **Post date:** [May 7, 2005, 7:17am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/131 "2005-05-07T07:17:58Z")
[http://ideamouth.com/appointments\_and\_disappointments.htm](http://ideamouth.com/appointments_and_disappointments.htm) Came across this in a Google search; they look upon first glance to be reasonable, but if not I apologize. "Judge, Court of Appeals for the Fifth Circuit Priscilla Owen, Enron’s political action committee gave Owen $8,600 for her successful Supreme Court bid in 1994. Two years later, Owen wrote the majority opinion that reversed a lower court order and reduced Enron’s school taxes by $15 million. Since 1993, Enron contributed $134,058 — more than any other corporation — to Owen and other members of the Texas Supreme Court. A study by Texans for Public Justice found that the court ruled in Enron’s favor in five out of six cases involving the company since 1993. Court of Appeals, 11th Circuit William H. Pryor, Jr. (recess appointment). Under Pryor’s leadership, Alabama was the only state to challenge the constitutionality of a provision of the Violence Against Women Act (United States v. Morrison). Pryor also argued that the Supreme Court should cut back on the protections of the Age Discrimination in Employment Act, the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Clean Water Act. Defended the actions of the prison officials who chained prisoners to hitching posts and denied access to water and the bathroom. U.S. Court of Appeals, 6th Circuit Richard Allen Griffin (failed nominee), requested Congressional invalidation of a unanimous Supreme Court decision holding that the ADA applies to state prisoners and prisons. U.S. Court of Appeals, 6th Circuit David W. McKeague (failed nominee), Denied DOJ access to a state prison after receiving numerous reports of abuse of women prisoners by guards, including systemic rape. Ruled against a parent whose 10 year old child was placed in foster care sharing a bedroom with a sixteen-year old with a history of sexually deviant behavior and assaults, who repeatedly sexually assaulted him. Claimed the state was not liable for failing to properly provide the child with the protective services to which he was entitled under state law." It seems there is more that is objectionable here than merely that they may be anti-abortion. Or that all that can be laid at their door is that some Democrats just don’t like them. ---
**Author:** ![theRanger](https://avatars.discourse-cdn.com/v4/letter/t/ecd19e/32.png) [@theRanger](https://boards.straightdope.com/u/theRanger)\ **Post date:** [May 7, 2005, 8:51am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/132 "2005-05-07T08:51:28Z")
> [@John Mace](#): > > I wouldn’t trust either one **if they didn’t refernce original source material.** Ah, upon reaching this page I see we’ve progressed beyond throwing up links as “proof.” Sorry about the previous post, then. I am now sure I’ve been away from this site too long. [Previous page](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179.md?page=6)