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The Left vs. An African-American Justice By: Henry Mark Holzer
FrontPageMagazine.com | Friday, October 24, 2003


For many years, American Leftists and other assorted collectivists lobbied for an African-American (the descriptive term in those days was “Negro”) to be appointed to the Supreme Court of the United States.  Despite the obvious racism driving that agenda, in 1967 then-President Lyndon B. Johnson obliged by naming veteran Civil Rights attorney Thurgood Marshall to the High Court.

In time, Marshall’s appointment and his tenure allowed people of all races to take their naked racism to the next level. It wasn’t enough that a Black had made it to the highest court in the land; now, de facto, the Supreme Court of the United States had a “Black Seat” — a slot on that bench that was reserved for a Negro.  It became unthinkable to the Left (and others) that a President of either political party would not replace a retired or deceased Black justice with another Black.

Despite the warning contained in the adage “Be careful what you ask for because you may get it,” when Justice Marshall retired in 1991, President George H. W. Bush nominated federal appeals court judge Clarence Thomas (a decent man, who had shown himself to be a stalwart Conservative in his then-brief tenure on the D.C. Circuit) to fill the Supreme Court vacancy.

Some naïve people expected that believers in “Black Seat” appointments would rejoice at the prospect of Thomas, a Black, replacing Marshall, the first justice of African descent to serve on the highest court of the land.  Others of us knew better.

While the battle over Thomas’ nomination was brutal in the extreme, it had one saving grace (besides his eventual victory).  The fight in the media and in the Senate revealed more nakedly than ever before the Left’s hypocrisy in placing above its racist agenda a consideration even more crucial: ideology.  It mattered not that Clarence Thomas was Black.  What mattered to Leftists – White and Black, male and female – was that he was a Conservative.

Today we have another President Bush and another Black judicial nominee —  this time not for the Supreme Court, but for the second highest federal court, the United States Court of Appeals for the District of Columbia Circuit (where Justice Thomas had served).  Predictably, we hear the same drum beat from the same Leftist ideologues as they target Janice Rogers Brown, an Associate Justice of the Supreme Court of California.

The looming battle over Justice Brown’s nomination gives rise to a host of important issues.  The blatant hypocrisy of many Blacks – ordinarily militant supporters of affirmative action and even quotas – opposing the nomination of a fellow Black to the second most important federal court in the United States.  The Left-wing  Senate Democrats’ potential, albeit ironic, use of the filibuster — an anti-democratic parliamentary device whose roots are buried deep in the dark soil of racial prejudice.  The partisan abdication of the Senate’s constitutional role of “advice and consent” regarding  judicial nominations, replaced by the unconstitutional maneuver of requiring 60 votes to break a filibuster.  The impact of the filibuster machinery on the constitutional doctrine of separation of powers.   The indefensible Leftist slogan that Republican judicial nominees must be in the “mainstream” (as the Left defines it) of current legal thought.  The Left’s abhorrence of Conservative jurisprudence, along with the tacit admission that since it can’t ram its agenda through most legislatures, it must move the battleground to the courts. The implications for the Brown nomination in the shameful abandonment by the White House, the Senate Republican leadership, and the Judiciary Committee majority, of their highly qualified nominee, Miguel Estrada.

Important questions all.  But not the most important on the eve of Justice Brown’s appearance before the Senate Judiciary Committee.  It is there that the public battle will be fought.  It is there that the true nature, and dangerous implications, of the Left’s opposition to Justice Brown must be laid bare. 

Just as it was with Clarence Thomas, the Left is afraid of Justice Brown’s jurisprudence. 

And well they should be.  In some eight years on the California Supreme Court, Justice Brown has acted in the best tradition of an independent judiciary — interpreting law, not usurping the role of the political branches by reshaping constitutions and statutes to fit her own notion of what constitutes the “good.”  The large number of opinions in which Justice Brown has participated precludes detailed examination here of the jurisprudence reflected in her writing.  Suffice to say that she wrote for the majority in upholding Proposition 209, which repudiated a basic tenet of the Left’s playbook: quotas and group preferences.  She dissented when the California Supreme Court majority put its imprimatur on a prior restraint of free speech.   She dissented again in a case when that court relegated property rights to second-class status. These three cases, alone, explain the Left’s frenzied opposition to Justice Brown’s nomination.

But to fully appreciate why the forthright and courageous Justice Brown is being demonized by the Left, her dissenting opinion in American Academy of Pediatrics v. Lungren is worth examining in detail.

California’s Legislature enacted, and the governor signed, a law prohibiting a physician from performing an abortion on an unemancipated minor without either (1) the written consent of one of her parents, or (2) judicial authorization.  This potential impediment to abortion, no matter how slight, was anathema to the Left, which challenged the law in the California courts.

In the state’s Supreme Court, because the court’s plurality viewed a woman’s (or in this case, a young girl’s) abortion decision as a constitutionally protected “fundamental right,” like voting, the judges applied  the so-called compelling state interest “test.”  This U.S. Supreme Court-approved two-pronged test allows a so-called fundamental right to be trumped by a statute only if: first, after a court applies “strict scrutiny” (whatever that means) to the law, and second it then finds that the state has a “compelling” (whatever that means) interest in the matter.  In “strictly scrutinizing” the California law that affected the child’s “fundamental right” to choose death for her fetus, the court plurality found that the state’s interest in requiring parental consent or judicial authorization was not “compelling.”  In other words, the California parental consent/judicial authorization law was unconstitutional.

Justice Brown began her lengthy and complicated, albeit cogent, dissent:  To reach this result, the plurality must ignore the historic limits of the federal Constitution, rewrite the privacy provision of the state Constitution, and abrogate the constitutional interests of parents in an opinion that cannot survive any level of scrutiny, much less strict scrutiny.”  Grist for the Left’s mill?  You bet!  In one sentence, Justice Brown had thrown down the gauntlet, forcefully defending the constitutional doctrine that there are limits to the interpretation of the federal Constitution, that courts had no business rewriting state constitutions, and that parents have constitutional rights.  For good measure, she turned the opinion on its head, noting derisively that it was the plurality’s ruling that could not withstand scrutiny.  (She was correct.). 

And that was only her opening salvo.

Justice Brown’s next words, taken from the Supreme Court of the United States, were an explicit recognition of the need for judicial restraint: “When dealing with the sensitive subject of abortion, ‘[o]ur obligation is to define the liberty of all, not to mandate our own moral code.’”  Translation: Abortion is a serious moral issue, but courts of law are not the place to make moral policy.

After devastating the plurality’s twisted and outcome-driven analysis, Justice Brown zeroed in on the core of the plurality’s superficial justification for its decision — and, doubtless, the analysis that follows, and its implications (edited because of space limitations), more than anything else in her American Academy of Pediatrics dissent has fueled the Left’s frenzied condemnation of this Conservative jurist: 

The plurality's conclusion that in the abortion context -- and possibly only in the abortion context -- an unemancipated minor's privacy interests are coextensive with those of an adult . . . is indefensible. * * * What the plurality fails to appreciate is that  [the California law] does not deny a mature unemancipated minor the right to make her own abortion decision. * * *  Specifically, although  [the law] requires an unemancipated minor to obtain the written consent of one of her parents, it also provides an alternative procedure whereby [judicial] authorization for the abortion can be obtained.  A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. * * * The plurality's statement that [the statute] "restricts a pregnant individual's ability to decide on her own whether to continue or to terminate her pregnancy" . . .  fails to account for the differences between unemancipated minors who are capable of giving informed consent and those who are not. Under [the statute], only unemancipated minors who lack the capacity to give informed consent are restricted in their ability to decide on their own whether to continue or terminate their pregnancies.

In nailing the plurality for what appears to be a deliberate misreading of the statute, Justice Brown laid bare the lengths to which the Left is willing to go to prevent even the slightest diminution of a female’s purported “right” to “terminate her pregnancy”  by killing her fetus.  For that, Janice Brown will never be forgiven by the Left.

Nor can the Left ignore other of her jurisprudential principles advanced in her American Association of Pediatrics dissent.  Among them:

·        “Courts must speak with clarity and precision when the available tools are adequate to the task at hand, but when the claim at issue involves fundamentally moral and philosophical questions as to which there is no clear answer, courts must remain tentative, recognizing the primacy of legislative prerogatives.”

·        “The plurality goes to extraordinary lengths to declare the [parental consent/judicial authorization statute] unconstitutional.  The fundamental flaw running through its analysis is the utter lack of deference to the ordinary constraints of judicial decisionmaking – deference to state precedent, to federal precedent, to the collective judgment of our Legislature, and, ultimately, to the people we serve.”

·        “A justice ‘is not to innovate at pleasure.  He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.’”

Justice Brown’s admirable fealty to these fundamental Conservative jurisprudential principles is, in itself, reason enough that she be confirmed. 

But she may not be.

In a recent column – “A Lynch Mob Gathers (Part I)” – my friend Tom Sowell asks (and, unfortunately, answers) an embarrassing question, obviously directed not only to Conservatives throughout America, but also to the White House, the Senate Republican leadership, and that party’s majority on the Judiciary Committee:

The real question is whether the administration that nominated Justice Brown will mount a serious counter-attack or leave her out there, twisting in the wind, the way it did with Miguel Estrada and its other judicial nominees.  Have you seen anything by anybody, anywhere, defending Janice Rogers Brown?  The attackers have been mobilizing for months but there is very little sign that those who nominated Justice Brown have made any timely efforts to mobilize counter forces.

In Part II of his Brown column, Sowell repeats his question and answer: “Is there any game plan in the White House or the Justice Department to get the truth out about Justice Janice Rogers Brown or will the lies have a field day?  If there is a plan, there is still no sign of it at this eleventh hour.”

As usual, Dr. Sowell is cogent and correct.  It is the eleventh hour.

But it is not too late.  Justice Brown will prevail in the Judiciary Committee, probably on a party-line vote.  Then, yet another battle in the ongoing war between the Leftists and Conservatives for the soul of the American judiciary will take place on the floor of the United States Senate.  It is a battle that neither Justice Brown, nor Conservatives, nor the American people, can afford to lose.  It is a battle that must be hard-fought, and decisively won.

Henry Mark Holzer (www.henrymarkholzer.com), Professor Emeritus at Brooklyn Law School, is most recently author of the monograph “Why Not Call It Treason?: Korea, Vietnam, Afghanistan and Today,” which may be obtained through Xlibris.com.           


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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