Advise and reject

June 08, 2005

THE CENTRISTS' bargain that allowed the Senate to call off its nuclear alert guaranteed that judicial nominees Janice Rogers Brown and William H. Pryor Jr. would be allowed filibuster-free access to a confirmation vote. But they were not guaranteed confirmation.

Thus there is still hope that senators will carefully review the record and recognize that neither is appropriate for a lifetime appointment to the increasingly important appellate courts.

Ms. Brown, 56, a California Supreme Court justice, is a favorite of the stereotype-busters. A soft-spoken African-American who began life as a sharecropper's child, she developed a feisty voice against affirmative action and government as nanny-state. Like Justice Clarence Thomas before her, Justice Brown has drawn the outspoken opposition of civil rights organizations that might otherwise have been presumed among her champions.

What's particularly disturbing, though, about Justice Brown's nomination to the D.C. Circuit Court of Appeals, the second-most-important court in the land, is her extreme and antiquated view of the superior status of individual property rights. Consumer protections, worker protections, environmental protections - all come second in views Justice Brown has attempted to enshrine in "anti-socialist" legal decisions.

Her appeal to President Bush and his allies in the business community is understandable. But Justice Brown's vigorous judicial activism troubles even some conservatives who share her views.

Judge Pryor, 43, who is serving on the 11th U.S. Circuit Court of Appeals in a temporary recess appointment made by Mr. Bush in a gesture of pique at confirmation delays, at least matches Justice Brown in the category of inflammatory views. The former Alabama attorney general has distinguished himself by appearing to blend legal opinions with his religious views, particularly on issues such as abortion and gay rights. In a Supreme Court brief, he once compared homosexual acts to "prostitution, adultery, necrophilia, bestiality and possession of child pornography and even incest and pedophilia."

During his tenure so far on the appellate bench in Atlanta, Judge Pryor cast the deciding vote upholding a Florida law banning homosexuals from adopting children.

Today's volatile atmosphere - in which judges are often called upon to resolve issues that lawmakers cannot, and increasingly find themselves in physical jeopardy - asks perhaps too much of those who wear the robe. The difficulty is only compounded, however, by packing the courts with jurists prized not for their independence but for their predictability.

Senators arguing against judicial filibusters contended their constitutional duty is to "advise and consent." But that's not quite it. Advise, yes; consent, not necessarily.

When the roll is called on nominees Brown and Pryor, the answer should be "no."

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